T 1088/07 – Dilute To Taste

In a recent post we have seen decision T 1898/07 where a claim directed to a liquid composition contained features of the syringe in which the liquid was to be contained. Rather than making a clarity objection (as examiners are told to do in the Guidelines C-III 4.14), the Board disregarded those features in its novelty assessment.

The present decision also favours this approach, which proves useful in cases where a clarity objection is impossible, i.e. when the claims under consideration are the claims as granted.

Claim 1 of the main request read:

A stabilized, concentrated, acidic antimicrobial composition characterized by forming a substantially clear diluted aqueous treatment composition upon dilution, said stable, concentrated, acidic antimicrobial composition comprising:

(a) from 5% to 95%, by weight of said concentrated composition, of an organic acid;

(b) from 1% to 80%, by weight of said concentrated composition, of a surfactant;

(c) a stabilizing agent;

(d) optionally, a buffer;

(e) optionally, optionally, [sic] toxicologically acceptable anti-foaming agent;

(f) optionally, toxicologically-acceptable preservative;

(g) optionally, perfume, flavoring agent, and/or coloring agent; and

(h) the balance comprising compatible, toxicologically-acceptable inert and/or minor ingredients;

wherein said concentrated composition has a pH of from 2 to 5 upon dilution; and

wherein a ratio of said stabilizing agent to said surfactant is from 10:1 to 1:20.

When assessing the novelty of this claim, the Board had to interpret the characterising part:

[3.1] Claim 1 of the main request is directed to “a stabilized, concentrated, acidic antimicrobial composition”, which comprises at least three components, namely, an organic acid (component (a)), a surfactant (component (b)) and a stabilizing agent (component (c)). A concentration range is defined for components (a) and (b), as well as a range for the ratio of components (c) to (b). The balance is defined under (h).

Two further features are present in claim 1, namely, “characterized by forming a substantially clear diluted aqueous treatment composition upon dilution” and “wherein said concentrated composition has a pH of from 2 to 5 upon dilution” (emphasis added).

However, claim 1 relates to a concentrate, and it is evident that the pH and appearance of the diluted solution will not only depend on characteristics of the corresponding concentrate, but also on the nature and properties of dilution medium used (e.g. pH, hardness), as well as the degree of dilution. These parameters are not defined in claim 1. In the absence of all the required information, the pH and appearance of the final compositions cannot be correlated with characteristics of the concentrate. Consequently, the features relating to the pH and appearance of the final composition upon dilution cannot be viewed as features delimiting the product claimed in claim 1, and must therefore be disregarded in assessing novelty.

Accordingly, claim 1 properly understood encompasses any acidic antimicrobial composition that comprises at least one organic acid, a second component falling within the functional definition “surfactant” and a third component falling within the functional definition “stabilizing agent”, in the concentrations and proportions defined in claim 1.

Finally the Board found the claim to lack novelty.

Should you wish to download the whole decision, just click here.