When inventive step was discussed, the [patent proprietor] argued that the skilled person in the art was an embryologist and would never have consulted any of the documents E3 to E5 belonging to the field of crystallography. He would also not have used the loops that were known for spreading bacterial cultures, inter alia because these loops were not used to form thin films.
The Board does not agree:
[5.3] The Appellants’ argument that the person skilled in the art of embryology would not have been aware of documents E3 to E5 was based on point 6 of both affidavits E13 and E14. These affidavits do, however, not take into account that the problem to improve the handling is not a problem specific to embryology but a mechanical one. When solving this mechanical problem, the person skilled in the art would have consulted the art in neighbouring fields where the same problem could occur and might have been solved when vitrifying biological samples.
Consequently, he would have been aware of document E3. This document deals with cryocrystallography and discloses flash cooling of macromolecular crystals such as proteins in a loop […], optionally in the presence of a cryoprotective additive […]. Document E3 mentions that the introduction of “a loop-mounting technique was a major advance ...” as compared to glass capillary tubes, fine glass fibres or small glass spatulas […].
Therefore it was obvious to the expert to improve the handling of the samples on an electron microscopy grid by attaching the grid to a loop as disclosed in document E3.
Hence, the subject-matter of claim 1 of the Main Request and of the First Auxiliary Request does not involve an inventive step.
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