T 0927/04 10-05-2006

Reasons for the Decision

1. The appeal is admissible.

2. Admissibility of documents D8, D8(a), D9, D10(a), and D11 to D16 into the proceedings.

2.1 As stated in decision T 117/86 (OJ EPO 1989, 401) facts and evidence in support of an opposition which are presented after the nine-month period has expired are out of time and late, and may or may not be admitted into the proceedings as a matter of discretion under Article 114(2) EPC.

2.2 Since the grant of the European Patent EP 0 646 613 was announced on 27 February 2002, the nine-month period ended on 27 November 2002.

2.3 In this connection, the Board notes firstly (i) that documents D8, D9 and D10 have been submitted by the Appellant with its letter dated 4 May 2004, i.e. one day before the oral proceedings before the Opposition Division, (ii) secondly that the Opposition Division did not admit these documents into the opposition proceedings and thirdly that documents D8 and D9 have been resubmitted by the Appellant with the Statement of Grounds of Appeal on 21 September 2004. Furthermore, documents D8a, D10a, D11, D12, D13, D14, D15(1) and D15(2) were submitted by the Appellant with the Statement of Grounds of Appeal on 21 September 2004, and document D16 was submitted with the letter dated 22 July 2005 of the Appellant.

2.4 It is therefore clear that documents D8 to D16 must be considered as late filed.

2.5 According to the case law of the boards of appeal, the main criterion for deciding on the admissibility of late-filed documents is their relevance, i.e. their evidential weight in relation to other documents already in the case, but further considerations which can play a decisive role in the question of admittance of late filed evidence are the degree of lateness and whether the late filing can be seen as representing an abuse of the proceedings (cf. T 1019/92 of 9 June 1994; not published in OJ EPO, Reasons, point 2.2)

2.6 In this context, the Board notes that the Opposition Division decided not to admit document D8, since it was prima facie not relevant for demonstrating a prior use since the name of the "buyer" had been deleted from that document.

2.7 The Board, having considered the evidence of D8 and the Opposition Division's decision that such evidence was not admissible, is satisfied that the Opposition Division did not misuse its discretion under Article 114(2) EPC when it elected to disregard document D8.

2.8 Consequently, the Board decided not to introduce document D8 into the proceedings (Art. 114(2) EPC).

2.9 The Board further notes that the Opposition Division decided not to admit documents D9 and D10, since they were not signed. According to the Appellant document D10(a) is a signed version of document D10, and the authenticity of document D9 is certified by document D11.

2.10 Even if it would be considered that the objections to the introduction of documents D9 and D10 into the proceedings raised by the Opposition Division might now have been overcome by the submission of D10(a) and D11, the Board however observes that, at the oral proceedings before the Board, the Appellant indicated that documents D9 and D10(a) were intended to support the fact that THPE had been on the market before the priority date of the patent in suit for use as branching agent for polycarbonate, but that it admitted that this fact was already established by documents D1 to D4.

2.11 Thus, under these circumstances, the Board can only come to the conclusion that documents D9 and D10(a) do not fulfill the criteria of relevance mentioned above in paragraph 2.5 above. Consequently, documents D9 and D10(a) were not admitted into the proceedings (Art. 114(2) EPC).

2.12 Since document D9 was not introduced into the proceedings, the same conclusion necessarily applied to document D11, which had been submitted in order to establish the authenticity of that document.

2.13 Concerning documents D8a, D12, D13, D14, D15(1) and D15(2), the Appellant argued that these documents have been filed as a response to the decision of the Opposition Division to consider that prior use was not supported by document D7.

2.14 According to the Appellant they constituted essential elements of the chain of evidence in order to show that the THPE lot Nr. 90030 referred to in D7 as having a sulfur content of 10 ppm had been delivered to General Electric for polycarbonate applications.

2.15 In that respect, the Board notes that D8(a) appears to overcome the main objection raised against the introduction of document D8 into the proceedings by the Opposition Division, since it mentions the name of the "buyer" (i.e. General Electric), and that documents D12 to D15 (2) appear prima facie to be very relevant for the issue concerning the alleged delivery of THPE of the lot Nr. 90030 to General Electric, and therefore for the issue of prior use.

2.16 In the Board's view, it is legitimate for a Party who has lost in opposition proceedings to try to improve its position in appeal by filling a presumed missing link, as in the present case, with respect to the issue of prior use. Taking further into account that the documents D8(a), D12, D13, D14, D15(1) and D15(2) have been submitted at the earliest possible moment by the Appellant, namely at the beginning of the appeal proceedings, the filing of these documents hence cannot represent an abuse of proceedings.

2.17 Consequently, the Board decided to introduce these documents into the proceedings.

2.18 Document D16, whose disclosure is very similar to that of document D15(2) (i.e. it only differs from document D15(2) by the indication of the gross weight of the drums of chemical), was not relied on by the Appellant at the oral proceedings before the Board, so that there was no need for the Board to decide on its introduction.

3. Novelty

3.1 While during the opposition proceedings lack of novelty of the subject-matter of the patent in suit has been alleged by the Appellant in view of documents D1, D2, and D3, the Board firstly notes that during the appeal proceedings the Appellant did not contest the conclusion of the Opposition Division concerning D1 to D3 in that respect. The Board sees also no reason not to share the view of the Opposition Division in that respect.

3.2 The Board further notes that the Appellant during the appeal proceedings still relied on document D4 as support of its objection of lack of novelty and developed its argumentation concerning the alleged prior use with the support of the further documents D8(a) and D12 to D15(2).

3.3 Document D4 relates to a process for the purification of THPE from a substantially solid crude admixture containing THPE and impurities resulting from the catalytic production of THPE from 4-hydroxyacetophenone and phenol, the process comprising:

a) washing said crude admixture with a saturated solution of THPE in a solute comprising from 60% to 75% by weight of water and from 25% to 40% by weight of methanol; and

b) isolating the thusly washing crude admixture from the formed effluent washing composition, and dissolving said washed crude admixture in methanol, and

c) adding sufficient water and sodium borohydride to said dissolved, washed crude admixture to form a precipitate of THPE, and

d) filtering said precipitate to thereby form a purified THPE and a filtrate; and

e) rinsing the resultant filtered precipitate of THPE with a solution of sufficient methanol and water, which optionally contains THPE up to the saturation point, and conducting the rinsing for a sufficient time to remove substantially all residual colored impurities from said precipitate (Claim 1). Optionally, the process might comprise the subsequent step of rinsing the filtered precipitate from step (d) with an aqueous solution of sodium dithionate (Claim 8).

3.4 According to D4, although pure THPE is white, the reaction product is a reddish-brown mixture of pure and impure product. As further indicated in D4, THPE is used as a hardener for epoxies and as a crosslinker for polycarbonates, and as such its color must be white (page 2, lines 11 to 13).

3.5 According to D4 the production of THPE may be performed by the reaction of 4-hydroxyacetophenone with phenol, wherein phenol is the supporting solvent as well as a reagent and this reaction takes place under catalytic conditions, with hydrochloric acid and beta-mercaptopropionic acid as preferred co-catalyst. According to D4 the resulting reaction product contains significant amounts of impurities, and the impure, substantially solid crude admixture contains THPE, residual 4-hydroxyacetophenone, phenol, chlorides, THPE isomers, bis-(hydroxyphenyl)ethene isomers, color bodies and other unidentified parts which are sought to be removed (page 3, lines 42 to 48).

3.6 The Board cannot, however, find in D4 any mention of the sulfur content either of the impure THPE before purification or of the THPE obtained after the purification process disclosed therein. Nor could it be implicitly deduced from the respective purity grades of the purified THPE exemplified in Tables II and V of D4 between 99.5 and 99.8% that their sulfur content would inevitably be at most 0.02% (i.e. 200 ppm).

3.7 In this context, the Board notes that Claim 1 of the patent in suit requires, explicitly, that the following steps be carried out:

a) the step of providing a specific branching agent containing more than 200 ppm of sulfur;

b) the step of decreasing the content of sulfur of the branching agent to 200 ppm or less and

c) the step of producing a branched polycarbonate by using the branching agent obtained in step (b) and adopting either the interfacial method or the melting method.

3.8 According to the decision T 355/99 of 30 July 2002 (not published in OJ EPO), it is not sufficient for a finding of lack of novelty that the claimed features could have been derived from a prior art document, there must have been a clear and unmistakable teaching of the claimed features (Reasons, point 2.2.4).

3.9 Thus, the question boils down to whether there is, in D4, a clear and unmistakable teaching of the combination of features mentioned above in paragraph 3.7.

3.10 In that respect, it is evident (cf. paragraph 3.5, above) that D4 is totally silent on the sulfur content of the THPE before purification and after purification, so that at least for these reasons it cannot destroy the novelty of the subject-matter of Claim 1 of the patent in suit.

3.11 This conclusion would not be altered, even if one would consider that the process of D4 might eventually enable the obtaining of THPE with a sulfur content of at most 200 ppm, since it would not be clearly and unambiguously derivable from D4 that these specific THPEs would inevitably be used in the manufacture of branched polycarbonates, since, as indicated in D4 (cf. paragraph 3.4 above), THPE may also be used as hardener for epoxy resins.

3.12 Consequently, the subject-matter of Claim 1 must be regarded as novel over D4. The same conclusion applies a fortiori for the subject-matter of dependent Claims 2 to 9.

3.13 It remains hence to be decided as to whether the claimed subject-matter has been made available to the public by prior use as alleged by the Appellant.

3.14 In the present case it is immediately evident that all the evidence in support of the alleged prior use lies within the power and knowledge of the Appellant (Opponent).

3.15 Consequently, in accordance with the principles set out in decision T 472/92 (OJ EPO 1998, 161, Reasons for the decision point 3.1), the Appellant must prove its case up to the hilt, for little if any evidence will be available to the patentee to establish the contradictory proposition that no prior public use had taken place.

3.16 Transposed to the context of the present case, it must hence be established beyond reasonable doubt that, before the priority date of the patent in suit, the combination of the steps (a), (b) and (c) referred to in paragraph 3.7 above have been made available to the public by prior use.

3.17 This reciprocally implies that the objection of prior use would fail provided it could not be established that one of the steps (a), (b) or (c) of the claimed process according to the patent in suit has been made available to the public by prior use.

3.18 In this connection, the Board deems it appropriate to take the most favourable starting points for the Appellant for the assessment of prior use, which are:

(i) It would be assumed in view of documents D12, D14 and D15(2) that 1653 lbs of the THPE of the lot Nr. 90030 has been shipped by Salsbury Chemicals from their site in Charles City (Iowa) to the plant of General Electric at Mount Vernon (Indiana) in October 1989; and

(ii) it would be further assumed in view of documents D12 and D15 (1) that these 1653 lbs of THPE of lot Nr. 90030 have been received by General Electric at its plant in Mount Vernon.

3.19 In that context, the issue as to whether step (c) has been made available to the public boils down to the following questions:

(alpha) as to whether it is established beyond any reasonable doubt that General Electric has effectively used THPE of the lot Nr. 90030 as such in the manufacture of branched polycarbonate either by the interfacial method or the melt method;

and if the question (alpha) can be answered positively

(beta) as to whether it is established beyond any reasonable doubt that the THPE of lot Nr. 90030 when used in the manufacture of polycarbonate by General Electric exhibited a sulfur content of up to 200 ppm.

3.20 Concerning question (alpha), while the Appellant has referred to document D8(a) to show that THPE was bought by General Electric for polycarbonate application (cf. D8a paragraph 1(a)), there is however no evidence on file either that THPE of the lot Nr. 90030 shipped to General Electric in October 1989 fell under the conditions specified in D8(a) for the use of THPE, since this sales agreement has been concluded only in January 1990, or that this lot has been effectively used as such by General Electric in the manufacture of branched polycarbonates.

3.21 In the Board's view, there is no irrefutable proof of the use of the THPE of lot Nr. 90030 as such in the manufacture of polycarbonate by General Electric. While such proof might have been provided by way of a declaration of General Electric in that respect, the Board can, however, only state that no such declaration has been submitted by the Appellant. Consequently, it cannot be excluded that the THPE of the lot Nr. 90030 was never used in the manufacture of polycarbonate, or, in the event that it had been used, that it was mixed with other batches of THPE of unknown origin and hence of unknown sulfur content before use.

3.22 Even if question (alpha) would have been answered positively, it would, in the Board's view, further not have been established beyond reasonable doubt what was the sulfur content of the THPE of lot Nr. 90030 when used by General Electric for the following reasons:

3.22.1 While Table 4 of document D7 indicates that a sample of THPE of lot Nr. 90030 exhibited a sulfur content of 10 ppm, this analysis refers to a sample of THPE of lot Nr. 90030 as produced at the Coventry plant of Hoechst Celanese Corporation.

3.22.2 It is however clear from document D14 that THPE of lot Nr. 90030 was sent from the Coventry plant to the Salisbury plant of Hoechst Celanese Corporation in order to be dried, and that, according to D14, that THPE was further sent to the site of Salsbury Chemicals in Charles City, and from there to the plant of General Electric at Mount Vernon.

3.22.3 The Board can only state that there is no evidence on file concerning the respective sulfur contents of the THPE of the lot Nr. 90030 when dried at Salsbury, when received by Salsbury Chemicals at Charles City, when received at Mount Vernon by General Electric and when used by General Electric at Mount Vernon.

3.22.4 In other words, there is no irrefutable proof that the sulfur content of the THPE of lot Nr. 90030 when used by General Electric in the manufacture of branched polycarbonate would have inevitably corresponded to the sulfur content detected in the sample of that lot as analysed in D7.

3.22.5 On the contrary, D7 itself casts a reasonable doubt, in the Board's view, concerning the content of sulfur in the THPE lot Nr. 90030 allegedly used in the manufacture of polycarbonate by General Electric at its Mount Vernon plant.

3.22.6 This is firstly because D7 refers to a customer complaint concerning a high level of sulfur in a lot of THPE produced at Coventry and hence shows that a difference might occur between the sulfur content of the THPE as produced at the Coventry plant of Hoechst Celanese Corporation and the sulfur content of that THPE when received by a customer, so that sulfur contamination during transport and storage cannot be excluded.

3.22.7 This is also because, as shown by the values indicated for the THPE lot Nr. 1071 in Table 4 of document D7, the amount of sulfur may vary considerably within the same batch of THPE, so that it cannot also be excluded that the 1653 lbs of THPE of the lot Nr. 90030 sent to General Electric might have exhibited a totally different sulfur content than that of the sample of that lot analyzed in D7.

3.23 Consequently, the Board can only come to the conclusion that it has not been proven by the Appellant beyond any reasonable doubt that at least step (c) was made available to the public by the prior use.

3.24 It thus follows from the above (cf. point 3.17 above) that the objection of prior use raised by the Appellant must fail, and that the subject-matter of Claims 1 to 9 must be considered as novel.

4. Problem and solution

4.1 The patent in suit relates to a process for the manufacture of branched polycarbonate either by the interfacial method or by the melt method.

4.2 Such processes have been disclosed in documents D1 and D3.

4.3 D1 relates to a process for preparing branched polycarbonates which are particularly suitable for extrusion due to their melt stability at elevated temperatures (column 1, line 60 to column 2, line 2). The branched polycarbonate is substantially free of crosslinking and comprises a polycarbonate polymer containing residues of an organic dihydroxy compound having up to ten carbon atoms, about 0.01 to about 2 mol percent of an organic trihydric or tetrahydric phenol and about 0.1 to about 8 mol percent of monohydric phenol, the mol percentages being based on the mols of the organic dihydroxy compound, said branched polycarbonate having a relative viscosity of from about 1.2 to about 1.55 measured on a solution of 0.5 gram in 100 ml. of methylene chloride at 25ºC, an average molecular weight of between about 30,000 and about 100,000 measured by light diffraction and a melt viscosity of between about 20,000 and about 300,000 poises at 280ºC (Claim 1). As branching agent THPE might be used (column 2, line 47). The process for the preparation of the branched polycarbonate comprises reacting a carbonic acid derivative with an aromatic dihydroxy compound containing up to about ten carbon atoms, from about 0.01 to about 2 mol percent of an organic trihydric or tetrahydric phenol and about 0.1 to about 8 mol percent of a monohydric phenol, the mol percentages being based on the mols of the organic dihydroxy compound (Claim 7). According to D1, both the interfacial process and the melt method might be used in the manufacture of the branched polycarbonates (column 6, lines 55 to 71).

4.4 D3 relates to a process for making a branched polycarbonate having an intrinsic viscosity [eta] in methylene chloride at 20ºC of 0.3 to 2.0 dl/g; a branching parameter G =[[eta]/[[eta]lin (wherein[eta]lin means an intrinsic viscosity of straight chain polycarbonate having the same weight average molecular weight as in the branched polycarbonate (according to light scattering method of 0.05 to 0.9; and a degree of branching lambda = nw/Mw (wherein nw and Mw mean weight average number of branching and weight average molecular weight, respectively) of 0.2 x 10**(-4)to 2.0 x 10**(-4).

According to D3, the process comprises reacting dihydric phenols, a polyfunctional organic compound having three or more functional groups and phosgene to produce a polycarbonate oligomer, and then polycondensing the polycarbonate oligomer with dihydric phenols and monohydric phenols under the stirring conditions to give the interfacial area of emulsion of not less than 40 m**(2)/L (page 3, lines 2 to 9, and 15 to 19).

4.5 The branching agents to be used in the process of D3 include phenolic compounds such as 1,1,1-tris(4-hydroxyphenyl)methane, THPE, 1,1,1-tris(2-methyl-4-hydroxyphenyl)methane, 1,1,1-tris(2-methyl-4-hydroxyphenyl)ethane, 1,1,1-tris(3-mehtyl-4-hydroxyphenyl)methane, 1,1,1-tris(3-methyl-4-hydroxyphenyl)ethane; 1,1,1-tris(3,5-dimethyl-4-hydroxyphenyl)methane, 1,1,1-tris(3,5-dimethyl-4-hydroxyphenyl)ethane, 1,1,1-tris(3-chloro-4-hydroxyphenyl)methane, 1,1,1-tris(3-chloro-4-hydroxyphenyl)ethane, 1,1,1-tris(3,5-dichloro-4-hydroxyphenyl)methane, 1,1,1-tris(3,5-dichloro-4-hydroxyphenyl)ethane, 1,1,1-tris(3-bromo-4-hydroxyphenyl)methane, 1,1,1-tris(3-bromo-4-hydroxyphenyl)ethane, 1,1,1-tris(3,5-dibromo-4-hydroxyphenyl)methane, and 1,1,1-tris(3,5-dibromo-4-hydroxyphenyl)ethane (page 4, line 54 to page 5, line 12).

4.6 As indicated in D3, its aim is to provide branched polycarbonates which are suitable for blow moldings due to an improved melt resistance and exhibit good hue and improved impact resistance (page 2, line 45 to 48).

4.7 As stated in the decision T 0686/91 of 30 June 1994 (not published in OJ EPO), a document not mentioning a technical problem that is at least related to that derivable from the patent specification, does not normally qualify as a description of the closest state of the art.

4.8 According to the patent in suit (cf. paragraph [0005]), the object of the patent in suit is to provide a branched polycarbonate, which, when produced by the interfacial method, shows no deterioration in heat stability and did not cause mold corrosion, and which, when produced by the melt method, shows no deterioration of heat stability and no inferior color tone.

4.9 It is therefore clear that the patent in suit is concerned with two different problems arising from the manufacture of branched polycarbonates, i.e. on the one hand, a problem linked with the interfacial process, and, on the other hand, a problem linked with the melt method.

4.10 In this connection, the Board notes that both the Opposition Division and the Parties have considered document D3 as representing the closest state of the art.

4.11 In that respect, the Board however observes that D3 relates only to the interfacial method, while D1 relates to both the interfacial method and the melt method. Both documents further deal with the problem of stability of the melt of the branched polycarbonate, which is, in the Board's view, also linked to the heat stability of the branched polycarbonate.

4.12 Although, in view of the criteria set out in the decision T 0686/91, D1 could have been considered as representing the closest state of the art, since it deals with the two aspects of the process of the patent in suit, the Board, however, notes that the branched polycarbonates prepared according to Examples 1 to 3 and to Comparative Example 1 of the patent in suit have been obtained under process conditions as defined in D3 (i.e. using an interfacial process in which the interfacial area of the emulsion is not less than 40 m**(2)/L, i.e. more precisely between 90 to 100 m**(2)/L).

4.13 In the Board's view, this allows a fair comparison between the properties of the branched polycarbonates obtained using the interfacial processes according to the patent in suit and the interfacial process according to D3, so that D3 would constitute a more appropriate starting point for the assessment of inventive step for the alternative relating to the use of an interfacial process according to the patent in suit.

4.14 It is nevertheless evident that D3 cannot represent the closest state of the art in view of the alternative relating to the use of a melt method according to the patent in suit, and that D1 would represent a better starting point in that respect.

4.15 Thus, starting from D3, the technical problem might be seen in the provision of a process which allows the manufacture of branched polycarbonate showing no deterioration in heat stability and not causing corrosion of the molds, and starting from D1, the technical problem might be seen in the provision of a process which allows the manufacture of a branched polycarbonate showing no deterioration of heat stability and no inferior color tone.

4.16 The solution proposed according to Claim 1 of the patent in suit is to use a branching agent, which has been subjected to a purification process in order to reduce its sulfur content to 200 ppm or lower, in the preparation of a branched polycarbonate by either the interfacial process or the melt method.

4.17 The comparison between Examples 1 and 3 and comparative Example 1 shows that the corrosion of the mold is decreased and that the heat stability is maintained in view of the slight variation of the taking-off parameter, when a branching agent with a low sulfur content (i.e. 120, 84 and 10 ppm in Examples 1 to 3, respectively, in comparison to 234 ppm in Comparative Example 1) is used in the interfacial process (cf. Table 1).

4.18 The comparison between Examples 4 and 5 and Comparative Example 2 shows that the color tone (yellowness index) is improved and that the heat stability is maintained in view of the slight variation of the taking-off parameter, when a branching agent with a low sulfur content (i.e. 120 and 10 ppm in Examples 4 and 5, respectively, in comparison to 234 ppm in Comparative Example 2) is used in the melt method (cf. Table 1).

4.19 Consequently, the Board is satisfied that the technical problems have indeed been solved by the claimed measures.

5. Inventive step

5.1 It remains to be decided whether the proposed solution was obvious in respect to the cited prior art, i.e. D1, D2, D3 and D4.

5.2 Concerning D1 and D3, the Board can only state that they neither says anything about the sulfur content of the branching agent to be used, let alone the influence of the presence of sulfur in the branching agent on the final properties of the branched polycarbonate.

5.3 Consequently, neither D3 nor D1 can evidently suggest the solution proposed in the patent in suit.

5.4 The Board notes that the Appellant has relied in particular on a combination of D3 with D4 for challenging the presence of inventive step.

5.5 In that context, the question to be answered is not whether the skilled person could have arrived at the invention by combining D3 with the teaching of D4, but whether he would have done so because the prior art incited him to do so in the hope of solving the objective technical problem (see T 2/83, OJ EPO 1984, 265).

5.6 While it is true, as submitted by the Appellant, that document D4 refers to a process for the purification of THPE and that it further refers to the use of THPE as crosslinker for polycarbonate, it cannot be denied that D4 says nothing about the sulfur content of the purified THPE obtained, let alone the effect of the sulfur content of the THPE on the corrosion properties of the branched polycarbonate when prepared by the interfacial process.

5.7 In other words, the skilled person would not get any hint or clue from D4 about the role played by the sulfur content of the branching agent on the corrosion properties of the final polycarbonate when prepared by the interfacial method.

5.8 Thus, even if it would be further considered that the process of D4 might allow to obtain a THPE with a sulfur content of 200 ppm or lower, the skilled person would not have any reason to combine the teaching of D3 with that of D4 in order to solve the technical problem underlying the patent in suit.

5.9 Although D4 indicates that the THPE when used as crosslinker for polycarbonate must be white (cf. point 3.4 above), the same conclusion would apply to the combination of D1 with D4. This is firstly because D4 does not only fail to make any link between whiteness of the branching agent and its sulfur content but it furthermore suggests as an optional embodiment a rinsing step with a sulfur containing compound (cf. Claim 8). This is also because D4 is totally silent on the effect of the sulfur content of the branching agent on the color properties of the branched polycarbonate when prepared by the melt method.

5.10 Document D2, which relates to the manufacture of branched polycarbonates by equilibration reaction of linear polycarbonate with polyhydric phenol in the melt (cf Claims 1, 5), is absolutely not concerned with the sulfur content of the polyhydric phenol. It cannot therefore provide any hint to the solution of the technical problem starting from D1.

5.11 Thus, in view of the above, the Board comes to the conclusion that the subject-matter of Claim 1 and by the same token that of Claims 2 to 9 cannot be rendered obvious by D1 taken alone or in combination with either with D4 or D2, or by D3 taken alone or in combination with D4.

5.12 It thus follows that the requirements of Article 56 EPC are met by all the Claims 1 to 9.

5.13 Since the appeal fails already in relation to the Main Request of the Respondent, there is no need to consider any one of the 3 Auxiliary Requests, all submitted with the letter dated 1 April 2005.