CABINET CHAILLOT

T0618/19

The proprietor and the opponent both lodged an appeal against the opposition division's interlocutory decision holding the then auxiliary request 3 allowable.
Independent product claim 10 of the main request reads as follows:
"Glutamine-based supplement in the form of a powder in a unit dose comprising at least 15 wt.% glutamine in the form of free glutamine, glutamine dipeptide and/or glutamine tripeptide on dry weight of the powder and further comprising non-digestible oligosaccharides selected from the group consisting of galacto-oligosaccharides and fructo-oligosaccharides."
D1 relates to a study aimed at determining whether long-term glutamine-supplemented enteral nutrition affects growth parameters in very-low-birth-weight (VLBW) preterm infants. In this study, preterm infants were assigned to receive enteral glutamine supplementation or a placebo between 8-120 days of life. In VLBW infants, the glutamine-supplemented group had significantly higher mean weight, length, head circumference, left upper mid-arm circumference (MAC) and left mid-thigh circumference (MTC) than the control group at the end of the fourth month.
The glutamine-based supplement of claim 10 of the main request only differs from the glutamine-containing supplement according to D1 in the presence of galacto-oligosaccharides (GOS) and fructo-oligosaccharides (FOS) as non-digestible oligosaccharides.
The proprietor argued that the presence of GOS and/or FOS in the claimed glutamine-containing supplement led to an improvement in the effect of glutamine on the structural brain volume or growth in that it aided the uptake of glutamine.
No example of the alleged effects is provided in the patent and there is no other evidence on file that demonstrates the alleged improvement resulting from the presence of GOS and/or FOS in a glutamine-containing supplement.
It is not credible that an improvement exists over the supplement disclosed in D1. It is noted that the glutamine supplement according to D1 leads to a significant improvement in numerous growth parameters in very-low-birth-weight infants.
As a consequence, the objective technical problem to be solved is the provision of an alternative glutamine-based supplement.
With respect to the question of obviousness, it is noted that both parties agreed that the addition of GOS or FOS in infant formulas belongs to the common general knowledge of a skilled person in the present technical field. There was also agreement between the parties that it was known that the addition of GOS or FOS leads to a healthy gut environment.
It is consequently an obvious measure for a skilled person to add GOS and FOS to an infant formula such as the glutamine supplement of D1, since the possibility of adding GOS and FOS belongs to the common general knowledge. According to the patent proprietor, the prior art did not teach the use of GOS and FOS to aid in the uptake of glutamine. However, in the absence of a demonstrated improvement over D1, no particular motivation is necessary for adding GOS and FOS. The claimed glutamine-based supplement is an obvious alternative in view of D1.
Thus, the subject-matter of claim 10 of the main request does not involve an inventive step in view of D1 as the closest prior art in combination with the common general knowledge.
The patent is revoked.

 

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