Interpretative spotlight: “compatible”

Claim 1 of the auxiliary request read:

1. Procedure for the production of stirred and drinking fermented milk products, characterized by the production of two or more individual different products made in a set of parallelly arranged fermenters, wherein the different fermenters each contain different subjects of fermentation, the subjects of fermentation being selected each from the group consisting of

(a) one species of microorganisms,

(b) a group of different but compatible microorganisms,

(c) a symbiotic union of microorganisms, wherein the individual different products thus made are then cooled and mixed in a desired proportion to make a new product.

The Board raises a clarity issue:

[3.1] Claim 1 of [this] auxiliary request differs from Claim 1 as granted inter alia in that the different fermenters each contain different subjects of fermentation and in that the subjects of fermentation are selected each from the group consisting of

(a) one species of microorganisms,

(b) a group of different but compatible microorganisms,

(c) a symbiotic union of microorganisms.

[3.2] The meaning of “compatible” is unclear, since - according to the opposed patent - cultures which were obviously long considered to grow together in one fermenter, and were thus regarded as being compatible in the field, are no longer considered to grow together in view of the patent (paragraphs [0004] to [0015]).

The problem addressed in the patent thus requires the skilled person to adopt a re-definition of the term “compatibility”. Yet, the opposed patent does not give any further guidance. In the absence thereof, it leaves the skilled person to guess precisely when microorganisms are to be considered compatible and in what respects.

For example, for microorganisms to qualify as compatible, is it enough if one microorganism is not eaten up by the other? Or does compatibility mean that the growth of one microorganism is not inhibited by the presence of the other microorganism? Or should the microorganisms have similar growth conditions? In the last case, the skilled person would not even know the degree of similarity that is required to consider microorganisms as being compatible.

[3.3] As the term “compatible microorganisms" was introduced into Claim 1 by way of amendment and was not present in the only granted claim, said amendment is open to an objection under A 84.

[3.4] Consequently, auxiliary request I [does] not meet the requirements of A 84.

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