T 423/09 – Agitation Recommended

The opponent filed an appeal against the decision of the Opposition Division rejecting the opposition.

Independent claims 1 and 21 of the main request before the Board read:

1. A milk sampling apparatus for use with an automated milking system, said apparatus comprising a cassette (7) wherein milk sample collecting elements (9) are placed, and at least one filling member (27) capable of being placed above a selected one of said milk sample collecting elements (9) by means of a positioning system, and capable of bringing a milk sample, representatively taken from milk yielded during the milking of an animal by means of said automated milking system, into said selected one of said milk sample collecting elements (9), characterized in that said milk sampling apparatus comprises agitating means (5) capable of agitating said milk sample.

21. A method for milk sampling in a milk sampling apparatus comprising a cassette (7) wherein milk sample collecting elements (9) are placed, and at least one filling member (27) movable above said milk sample collecting elements (9) by means of a positioning system, and capable of bringing a milk sample, representatively taken from milk yielded during a milking of an animal by means of an automated milking system, into anyone of said milk sample collecting elements (9), characterized by

• bringing said milk sample into a selected one of said milk sample collecting elements (9); and
• agitating said milk sample.

In the following paragraphs the Board examines whether this subject-matter involves an inventive step.

[3.1] D13 is undisputedly the closest prior art document and discloses the prior art portion of claims 1 and 21.

Auxiliary request 1 further specifies with respect to the main request that said milk sample is: “in said selected one of said milk sample collecting elements (9)”. This further feature is also disclosed in D13.

[3.2] The milk sampling apparatus of claim 1 according to the main and first auxiliary request differs from that of D13 in that it comprises agitating means capable of agitating said milk sample.

The milk sampling method of claim 21 according to the main and first auxiliary request differs from that of D13 by the step of agitating said milk sample.

[3.3] As stated in the patent specification, [...]

“… the sample tubes are typically prepared with a preservative prior to sampling …” or [...] “The sample tubes are typically delivered to the farmer in a cleaned and preservative prepared condition…”.

It is therefore implicit that a standard milk sample collecting element already contains a preservative before the milk sample is added.

[3.4] Starting from D13 as closest prior art, the problem the invention seeks to solve may thus be seen in improving preservation of the milk quality of the milk samples, when using an automated milk sampling system of the kind disclosed in D13.

D3 is a document intended to serve as a field manual on preservation of milk samples which gives guidance as to the best practice for manual collection of samples. This document thus illustrates the common general knowledge of the skilled person in relation to milk sample preservation. D3 recommends inter alia the following practice (page 11, section 3.2):

i) the milk tubes into which the milk samples are to be delivered are provided with a chemical preservative and

ii) after milking, the sample box should be turned over three or four times in order to mix the preservative and the milk well. 

Thus common general knowledge in relation to milk sample preservation does include the step of agitating the collected milk sample, so as to mix the milk sample with the preservative.

D9 [...] states:

“Make sure you mix the milk and preservative well by rotating the bottles as they are filled… Thorough mixing with the preservative is especially important in the summer months”.

D8 [...] specifies “Milk … was dispensed … into … plastic bags…” and “Thus, on closing the bags [sample collecting element] and dissolving the tablets [preservative] by gentle shaking …”

[3.5] The fact that D3, D8 or D9 refer to manual collection of milk samples is irrelevant. These citations define the recommended practice for the preservation of milk quality of collected milk samples which includes agitating the sample collecting element so as to mix or dissolve the preservative in the collected milk sample.

[3.6] The [patent proprietor] argued that the idea underlying the present invention is to improve the preservation of the milk quality of the collected milk samples by enabling strongly accelerated dissolution of the preservative in the milk samples and that this idea is not taught by the cited prior art.

However, D9 “National Dairy Herd Improvement Handbook” deals with practices to be followed with regard to milk sample preservation. On page 2 of the handbook “Protect sample quality” the recommended practice is as follows:

“Make sure you mix the milk and preservative well by rotating the bottles as they are filled or by gently rotating the whole box after you complete milking”.

It goes without saying that the skilled person following this recommended practice would also consider agitating the milk sample collecting element as it is filled and would thus “strongly” accelerate the dissolution of the preservative in the milk sample.

Under established Board case law an enhanced effect cannot be adduced as evidence of inventive step if it emerges from obvious tests, see in particular T 296/87 [8.4.1]. In the present case the enhanced effect, that is the strongly accelerated dissolution of the chemical preservative, does not emerge from routine tests but from the practice to be followed according to the rules and recommendations of the handbook D9. The skilled person following the recommended practice prescribed in this handbook, and thus acting only routinely would inevitably obtain this enhanced effect which therefore cannot be taken as an indication of inventive step.

[3.7] The [patent proprietor] submitted that D3 does not provide a clear teaching since it also warns the reader against any rough handling of the milk samples such as shaking or stirring.

However, this article addresses the skilled practitioner who knows that excessive agitation might be detrimental to the milk sample and that only a gentle agitation is required (as indicated in D8 [...]).

The [patent proprietor] submitted also that it would not have been obvious to equip the automated sampling apparatus of D13 with an agitating means. However, according to the routine described in particular in D3, the sample collecting box containing the sample collecting elements has to be agitated such as to thoroughly mix the preservative with the milk sample in the sample collecting elements. There would be no difficulty for the skilled person, here the specialist of automated sampling apparatuses who also knows the procedures to be followed with regard to milk sample preservation to provide these sampling apparatuses with automated agitating means.

[3.8] Consequently, the subject-matter of claims 1 and 21 according to the main request or the first auxiliary request does not involve an inventive step.

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