T 1225/18


This decision concerns the appeal filed by the opponent (appellant) against the opposition division's interlocutory decision which held the European patent in an amended form.

Claim 1 of the main request, which the opposition division held to be allowable, reads:

"A process for producing an infant food product comprising a protein ingredient and a vegetable ingredient wherein, in a first stage, a vegetable ingredient is cooked, and a protein ingredient is cooked separately from the vegetable ingredient to provide precooked ingredients, and in a second stage, the pre-cooked ingredients are mixed and, after mixing, are submitted to UHT processing to sterilize the product, which product is aseptically filled in containers thereafter,

wherein the protein ingredient comprises a source of protein selected from meat and fish, and

wherein the UHT processing is carried out at a temperature of 130°C to 140°C for a time of 30 seconds to 240 seconds."

The opposition division decided that the subject-matter of claim 1 involved an inventive step over D17. The parties agreed that D17 was the closest prior art.

D17 is an excerpt of selected pages from a handbook on aseptic processing of foods. It summarizes the common general knowledge in the art of preserving food products and focuses on processes involving UHT. It describes the advantages of the UHT process as well as how to implement it. This includes the pre-treatment of food ingredients such as vegetables, meat or fish and the packaging of treated products. D17 discloses that UHT processes are widely used in the food industry.

The respondent's view was that D17 did not disclose the specific combination of:

- the separate pre-cooking of the vegetable and the meat/fish ingredient for the purpose of subsequent UHT processing; and

- the UHT processing conditions of 130-140°C for 30 to 240 seconds for a mix of vegetables and meat/fish.

The respondent further argued that D17 did not disclose the step of mixing the pre-cooked vegetables and meat before subjecting them to UHT processing.

However, the separate pre-cooking of the vegetable and the meat/fish ingredient necessarily implies that these ingredients are mixed before they undergo UHT processing, as is taught in D17. Mixing the pre-cooked ingredients therefore does not represent a further distinguishing feature of claim 1.

The respondent argued that the combination of features, including the distinguishing features, provided several technical effects, all demonstrated in the patent's experimental section. The alleged effects were a high retention of thiamine, low furan values, a good cooking value, a good product color retention, and a good taste.

The patent's experimental section does not include a comparison with UHT conditions, i.e. the process taught in the closest prior art. Moreover, D17 teaches that UHT processing is associated with many advantageous effects. These include inactivation of enzymes and micro-organisms and prevention of thermal damage (e.g changes in odor, taste, color, texture; reduction of nutrients; loss of vitamins).

In view of this teaching and considering the absence of experimental data comparing the subject-matter claimed, in particular the UHT conditions according to claim 1, with D17, it is not credible that these alleged effects occur.

Thus, there is no credible evidence that the conditions set out in claim 1 provide the alleged advantageous effects listed above, at least not over the entire scope of the claim. The subject-matter of claim 1 is not associated with a credible technical effect other than providing another aseptic process.

Therefore, the technical problem is to provide an alternative process for producing an aseptic infant food product.

The question here is whether the skilled person would pre-cook the vegetable and the meat/fish ingredient separately for the purpose of subsequent UHT processing and whether they would choose the UHT conditions set out in claim 1.

These two features are taught in D17. As explained above, this document summarizes the common general knowledge in the art of preserving food products using UHT processes. Therefore, the skilled person would be able to rely only on common general knowledge to arrive at the solution in claim 1.

More specifically, D17 teaches that it is possible to achieve a higher nutritional value after the cooking cycle if the vegetables and meat are separated. For each ingredient, a suitable heating (and cooling) process is applied. Such pre-cooking processes, which differ depending on the ingredient used (e.g. vegetable or meat), are described. In view of this, the skilled person would readily envisage pre-cooking the vegetable and the meat/fish ingredient separately, prior to UHT processing.

As to the UHT conditions in claim 1, D17 discloses that for a liquid product with larger particles, times for heating and heat-holding times must be much longer. D17 teaches advantageous UHT conditions that overlap with those of claim 1.

To conclude, the subject-matter of claim 1 does not involve an inventive step (Article 56 EPC).

The patent is revoked.