This is an appeal by an opponent whose opposition had been rejected.
Claim 1 of the patent as granted read:
1. A cleaning composition comprising a surfactant and a proteinic substrate based oxygenase, selected from the group consisting of:22.214.171.124 TRYPTOPHAN 2,3-DIOXYGENASE126.96.36.199 CYSTEINE DIOXYGENASE188.8.131.52 PEPTIDE-TRYPTOPHAN 2,3-DIOXYGENASE184.108.40.206 STIZOLOBATE SYNTHASE220.127.116.11 STIZOLOBINATE SYNTHASE18.104.22.168 ARGININE 2-MONOOXYGENASE22.214.171.124 LYSINE 2-MONOOXYGENASE126.96.36.199 TRYPTOPHAN 2-MONOOXYGENASE188.8.131.52 PHENYLALANINE 2-MONOOXYGENASE184.108.40.206 LYSINE 6-MONOOXYGENASE220.127.116.11 TRYPTOPHAN 2-DIOXYGENASE18.104.22.168 gamma-BUTYROBETAINE DIOXYGENASE22.214.171.124 PROCOLLAGEN-PROUN,2-OXOGLUTARATE 4- DIOXYGENASE126.96.36.199 PROCOLLAGEN-LYSINE,2-OXOGLUTARATE 5- DIOXYGENASE188.8.131.52 PROCOLLAGEN-PROLIN.2-OXOGLUTARATE 3- DIOXYGENASE184.108.40.206 TRIMETHYLLYSINE,2-OXOGLUTARATE DIOXYGENASE220.127.116.11 PEPTIDE-ASPARTATE ß-DIOXYGENASE18.104.22.168 PHENYLALANINE 4-MONOOXYGENASE22.214.171.124 TYROSINE 3-MONOOXYGENASE126.96.36.199 TRYPTOPHAN 5-MONOOXYGENASE188.8.131.52 PEPTIDYLGLYCINE MONOOXYGENASE.
The opponent inter alia argued that this claim was not novel.
The Board disagreed:
[2.1] The [opponent] argued that the patent-in-suit together with D8 and D9 covered a total of 119 oxygenases, which amounts to a major part of the total of approximately 300 enzymes of EC 1.13 and 1.14. Since the [opponent] did not regard this to be a “narrow” selection, the criteria for a selection invention would allegedly not be met.
NB: D8 and D9 were parallel applications filed on the same day as the application on which the impugned patent is based.
[2.2] The Board cannot accept [opponent’s] arguments. Given the fact that D8 and D9 have the same filing date as the patent-in-suit and therefore do not represent state of the art according to A 54(2) EPC 1973 or A 54(3), these documents cannot be used for any novelty objection.
[2.3] Furthermore, the patent-in-suit does not define a sub-range of a broader numerical range, but a selection of individual (classes of) enzymes mentioned distinct from the ones used in D7. Thus, for the present case the criteria for selection inventions cannot be applied.
[2.4] Finally, the [opponent] has not credibly shown, that any of the documents cited in the course of the appeal procedure discloses an enzyme encompassed by the list of Claim 1 as part of a cleaning composition.
[2.5] As Claims 17-22 describe the use of enzymes identical to the ones used in Claim 1, similar considerations apply for these claims too.
[2.6] Therefore novelty of the claimed subject-matter of the main request is given.
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