This decision also deals with objections under A 100(c) against the main request and several auxiliary requests.
[6.1] In claim 1 of each of these requests, the coating composition is prepared by a process comprising at least two steps: the first ethylene polymer having a value of melt flow rate MFR12 comprised between 50 g/10min and 2000 g/10min is prepared, the second ethylene polymer having an MFR22 value lower than MFR12 is prepared. Moreover, in claims 1 of these requests, it is specified that the process of making the multimodal polymer contains at least two steps which can be performed in any order (emphasis added by the board). This combination of characteristics was also present in claim 1 as granted.
[6.2] First, the melt flow rate MFR12 of the first ethylene polymer between 50g/10min and 2000g/10min, which is the polymer with low molecular weight since its MFR is higher than the MFR of the second ethylene polymer, is explicitly mentioned in the application as originally filed. However, this MFR for the first ethylene polymer is mentioned in conjunction with the condition that the said first ethylene polymer is made in the first step.
The application states:
“However, it is preferential that in said first step a hydrogen amount is used, leading to a melt flow rate MFR12 of said first ethylene polymer of from 50 g/10min to 2000 g/10min, most preferentially from 100g/10min to 1000g/10min, provided that said first step is performed before said second step.” […].
[The patent proprietor] acknowledged that the disclosure of this feature was such that the first step is performed before the second step […].
[6.3] The question is whether the skilled person with his common general knowledge would have derived directly and unambiguously from the content of the application as filed that the steps of preparation of the ethylene polymers can be performed “in any order”, namely that the preparation of the first ethylene polymers having an MFR between 50g/10min and 2000g/10min can be performed in the second step.
[6.4] The specification makes it clear that the preferred embodiment is to prepare the low molecular weight component first […]. The general principle is however that the steps can be performed in any order […]. It is also stated that when feeding the first ethylene polymer into the mixing step, the melt flow ratio MFR12 of the first ethylene polymer is preferentially from 50 to 2000 g/10min.
[The patent proprietor] argued that it is common general knowledge that the low molecular weight component can be produced in the first or the second step. Therefore, the disclosure of the melt flow rate MFR12 when the low molecular weight component is prepared in the first step automatically also applies to the embodiment in which the low molecular weight component is prepared in the second step. The melt flow rate is a property of the ethylene polymer itself and has nothing to do with the step sequence. Therefore, the skilled person will understand that the same preferred melt flow rate MFR12 of 50g/10min to 2000g/10min will apply if the low molecular weight component is prepared in the second step.
[6.5] In assessing whether an amendment is objectionable or not under A 100(c), care should be taken not to confuse what is to be derived by a person skilled in the art from the content of a disclosure with what is to be derived directly and unambiguously by a person skilled in the art from the content of the same disclosure. The first notion is based on what is generically or conceptually disclosed, the second is based on what is disclosed without ambiguity. Thus, in the present case, if it might have been admitted using the first notion, that one of the obvious possibilities which can be derived from the passage […] which reads:
“the preferred embodiment is to prepare the low molecular weight component first […]. The general principle is however that the steps can be performed in any order […]. It is also stated that when feeding the first ethylene polymer to the mixing step, the melt flow ratio MFR12 of the first ethylene polymer is preferentially from 50 to 2000 g/10min.”
is that the first ethylene polymer having a value of melt flow rate MFR12 comprised between 50 g/10min and 2000 g/10min (ethylene polymer of lower molecular weight) is prepared in a second step, this not the sole possibility, because the application also states that when the first ethylene polymer has a value of melt flow rate MFR12 comprised between 50 g/10min and 2000 g/10min it must be prepared in the first step.
This ambiguity (several possibilities) is an insuperable objection when assessing the allowability of an amendment.
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