Key points
- "3.1 The invention according to [method] claim 1 relates to a method for culturing animal cells.
- 3.2 The appellant [opponent] based its inventive-step objection on the [public prior use] Ecover fermenter as closest prior art. The Ecover fermenter, including the whole control system, [] was used for microbial applications.
- 3.3 The problem to be solved is to provide a method for effectively culturing animal cells []
- 3.5 There is no reason to doubt that the problem is successfully solved.
- 3.6 The solution to the problem is not obvious. The Ecover fermenter was installed with the sole aim of culturing bacteria. While the vessel, which as such is part of the overall system installed, is suitable for culturing animal cells as set out above, there was no indication or pointer to the skilled person leading them to use that fermenter for culturing animal cells. Rather, the skilled person would have understood that the fermenter was specifically provided for bacterial applications, as is also evident from D18, which distinguishes between fermenters for microbial applications and fermenters for cell culture applications (page 7).
- The skilled person trying to solve the problem posed knows that both types of fermenter are available on the market. There is no reason why they would take a fermenter that is used to cultivate bacterial cells and convert it into a different system when there is no indication that the conversion would lead to a successful result. The skilled person would rather turn to the Biostat DC series described in D18 (which does not comprise the stirrer system of D24) when trying to cultivate animal cells.
- The argument [of the opponent] that the secondhand market would trigger broad usability of fermenters is based on speculation, for which no proof has been provided in relation to the specific fermenter.
- 3.7 The subject-matter of claim 1 is considered to be based on an inventive step."
- As a comment, I think that such a rejection of an inventive step attack is more satisfying than merely asserting that the prior use is not suitable as a starting point because it has a different purpose than the claim.
EPO T 1367/19
The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.
source http://justpatentlaw.blogspot.com/2022/02/t-136719-cpa-for-different-purpose.html
