[3.2] Document D14, which like the contested patent relates to the treatment of [non-insulin-dependent diabetes mellitus (NIDDM) …], constitutes the closest prior art.
The [patent proprietor] argued that document D14 did not qualify as closest prior art because of its speculative character.
Indeed, there are some phrases to be found in the first paragraph of the section “Future Trends in Treatment of NIDDM” on page 326 (e.g. “compounds that act as insulin sensitizers might be expected to have an important role in treatment”, “[a] group of drugs which may act in this manner, the thiazolidinediones ”, “[it] is interesting to speculate on the possible future role of the thiazolidinediones ”, “[it] is even more likely that they could play a role in combination therapy ” [emphasis by the board]) which, at first sight, might lead to such a conclusion.
However, the above-mentioned paragraph of document D14 also reveals that at the time when document D14 was published, the TZDs, and in particular ciglitazone, pioglitazone and englitazone, were undergoing human trials in patients with NIDDM and that further data concerning, among others, the mechanism of action, were available from animal models. Taking into consideration these data as well as common general knowledge, the author of document D14 then gave an outlook into future trends, which were of course not yet verified by experimental evidence.
In view of the fact that this outlook was based on the data available at the time, the skilled person would not dismiss it as pure speculation. Instead, he would regard it as a serious attempt to interpret the existing state of the art. As a consequence, the content of document D14 qualifies as closest prior art.
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