The opponent filed an appeal against the decision of the Opposition Division to maintain the patent in amended form.
The decision contains an interesting paragraph dealing with the novelty of claim 5 of auxiliary request 5, which read (in English translation):
Moulded article (Formkörper) for the non-systemic control of parasitic insects on animals, comprising imidacloprid in a mixture with synergists or other active compounds.
*** Translation of the German original ***
[6.3] Claim 5 of auxiliary request 1 is directed to a moulded article (Formkörper) comprising imidacloprid for the non-systemic control of parasitic insects on animals.
Examples 1 and 10 of document D13 discloses wool, woollen yarn or a sheet-like structure of wool which have been treated with a dye solution containing imidacloprid in order to protect the dyed material against being eaten by moths and beetles.
[6.3.1] In its argumentation regarding lack of novelty, the [opponent] referred to the English translation of claim 5 where the term Formkörper was translated by “shaped article”. A sheet-like structure of wool such as the one disclosed in document D13 was a “shaped article”. Moreover, this sheet-like structure was impregnated with imidacloprid as well as another insecticide, the quantities of which were sufficient for non-systemic control of parasitic insects. Therefore, it was suitable for the use referred to in claim 5, irrespective of whether such a use had been disclosed.
[6.3.2] First of all it has to be noted that pursuant to A 70(1), it is the German language that is relevant because it is the language of the proceedings. Therefore, when assessing novelty, one has to consider the meaning of the German term Formkörper and not what might be encompassed by “shaped article” as used in English.
The technical expression Formkörper does not simply refer to a three-dimensional object, i.e. an article having a certain shape, but designates a particular object that has been produced in a particular way, i.e. from moulding compounds (Formmassen). The latter are liquid, paste-like compounds, in particular synthetic materials, which can be moulded by non-cutting moulding (e.g. injection moulding, extrusion, compression) into moulded articles. Wool, woollen yarns and sheet-like structures of wool such as those disclosed in document D13 are not encompassed by this term.
For this reason alone document D13 cannot anticipate the subject-matter of claim 5.
[6.3.3] During the oral proceedings the [opponent] also argued that the fumigating coils mentioned in document D8 were encompassed by the expression “shaped article”. Moreover, this document also mentioned impregnated natural and synthetic materials. The materials cellulose and starch mentioned in paragraphs [0053] and [0079] of the opposed patent were encompassed by those expressions.
[6.3.4] However, the expressions “synthetic and natural materials” in document D8 and “moulded article” (Formkörper) are not equivalent at all. For example, materials made from wool, paper or leather are encompassed by the expression “natural and synthetic materials” but do not qualify as “moulded articles” […]. Also, the fact that according to the opposed patent both cellulose and starch qualify for the production of moulded articles does not mean that, conversely, that the impregnated materials mentioned in document D8 necessarily are moulded articles. The same holds true for the fumigating coils mentioned in document D8. This document does not explain from which materials and how they were made, nor has the [opponent] provided proof that they necessarily are or have to be moulded articles within the above meaning.
[6.4] Therefore, the Board comes to the conclusion that claims 1 and 5 of auxiliary request 1 are novel within the meaning of A 54.
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