Monday, 3 January 2011

T 743/07 – Acceptable Danger

One more post on the skilled person ...

In a recent post we have seen that the skilled person is a rather conservative and cautious person. This does not mean, however, that he/she cannot face danger at all.

[3.7.9] Finally, the [patent proprietor] argued that the skilled person would have been deterred from using a methanol solution of hydrogen peroxide in view of the teaching in document D2 that the handling of anhydrous or near-anhydrous organic solutions of hydrogen peroxide is unsafe.

[3.7.10] The Board is not convinced by the [patent proprietor’s] arguments. The passage in document D2 on which the [patent proprietor] relies is merely a warning for the skilled person that when using potentially dangerous organic solutions of hydrogen peroxide he has to act with care and may have to take precautionary measures. It does not suggest in any way that these solutions would be unsuitable for the oxidation reaction or detrimental to its outcome. This passage therefore does not deter the skilled person from using these solutions.

Furthermore, the Board notes that despite this disadvantage, anhydrous or near-anhydrous solutions of hydrogen peroxide have been used before in the oxidation of olefins, as indicated in document D2 […].

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