The present examination appeal decision is not surprising at all, but it nicely demonstrates the – rather strict – way in which A 123(2) is applied by the EPO nowadays.
Claims 1, 12, 13, 26, and 27 as filed read (my emphasis):
1. A method for modulating the activity of at least one neurotrophin and/or a pro-neurotrophin in a cell or an organism, such as an animal, comprising administering to said animal a sufficient amount of an agent capable of(i) binding to a receptor of the Vpsl0p-domain receptor family and/or(ii) interfering with binding between a receptor of the Vpsl0p-domain receptor family and a neurotrophin and/or proneurotrophin and/or(iii) modulating the expression of a receptor of the Vpsl0p-domain receptor family.12. The method according to any of the preceding claims, wherein the agent is selected from proteins, peptides, polypeptides, antibodies, antisense RNA, antisense-DNA or organic molecules, SiRNA.13. The method according to any of the preceding claims, wherein the agent is capable of inhibiting binding of said neurotrophin or said pro-neurotrophin to the receptor.26. A method for treating a disease or disorder in an individual, comprising administering to said individual a sufficient amount of an agent as defined in any of the claims 1-25.27. The method according to claim 26, wherein the disease or disorder is selected from one or more of the following diseases or disorders: inflammatory pain, diseases or disorders of pancreas, kidney disorders, lung disorders, cardiovascular disorders, various types of tumours, psychiatric disorders or neuronal disorders.
Claim 1 of the main request before the Board read:
Use of an agent capable of inhibiting the binding of a proneurotrophin to a Vpsl0p-domain receptor by binding to an extracellular part of the receptor, an intracellular part of the receptor, or a segment of the transmembrane part of the receptor in the manufacture of a medicament for treating and/or preventing neurological diseases and disorders in an animal.
The Board found this claim not to comply with the requirements of A 123(2):
 In accordance with established case law of the Boards of Appeal, the relevant question to be decided in assessing whether an amendment adds subject-matter extending beyond the content of the application as filed is whether the proposed amendment is directly and unambiguously derivable from the patent application as filed.
 In a primary line of argumentation the appellant has referred to a combination of various claims as originally filed which when taken in combination supported claim 1. However, the board notes that when combining the various embodiments of the claims […] it transpires that the specific subject-matter of claim 1 can only be derived therefrom when making a variety of specific selections from the lists of embodiments which are the subject of these claims. By way of example the board refers to claim 12 as filed in which antibodies are listed among other candidate inhibitory binding compounds; to claim 13 as filed, in which a choice has to be made between pro-neurotrophin and neurotrophin and to claim 27 as filed where neuronal diseases are merely one of the numerous diseases listed to be treated.
 Accordingly, the claims as originally filed cannot provide a basis for claim 1 to comply with the requirements of A 123(2).
As the Board found that the description did not provide such a basis either, the request was dismissed.
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