Key points
- Claim 1 as granted reads: “1. Stabiliser system of natural ingredients for use in frozen confectionery characterised in that it comprises native rice starch, egg yolk as a natural emulsifier and citrus fibres.”
- “The patent relates to an "all natural" frozen confectionery which can be manufactured without resorting to artificial ingredients. Standard stabiliser systems which comprise "E numbers" or chemically synthesised compounds can be dispensed with and organoleptic aspects such as creaminess are not compromised. The stabiliser system in the patent comprises native rice starch, egg yolk and citrus fibres. The citrus fibres may be expanded, i.e. processed so as to increase their surface area”
- About novelty over prior use: “However, it appears that this evidence, taken together, still does not allow to conclude that a sample (here: P1 to P3) includes rice starch, more particularly native rice starch. Similar considerations apply also for the (expanded) citrus fibres: O103 and O104 do not appear to show that apple fibres and citrus fibres are analytically distinguishable.”
- About inventive step" “Even if O80 [ a product information sheet, not dated] was considered prior art, in particular closest prior art, there appears to be no motivation or pointer for the skilled person to add citrus fibres to improve organoleptic properties such as creaminess of the ice cream.”
- The claims are considered to be inventive.
T 2170/17 -
https://www.epo.org/law-practice/case-law-appeals/recent/t172170eu1.html
VII. The claims that are relevant for this decision are claims 1, 2, 3 and 8 of the patent as granted (main request):
"1. Stabiliser system of natural ingredients for use in frozen confectionery characterised in that it comprises native rice starch, egg yolk as a natural emulsifier and citrus fibres.
...
2.2 The opponent agreed with the decision and argued that claims 1 and 2 also lacked novelty in view of P1 to P3. The patent proprietor contested the opposition division's decision.
2.3 One of the issues in dispute was whether the composition of P1 to P3 was analysable. Here, the question was whether it would have been possible to determine that P1 to P3 included native rice starch, (expanded) citrus fibres and egg yolk.
source http://justpatentlaw.blogspot.com/2021/11/t-217017-ice-cream.html
