T 0985/10 20-03-2012

Reasons for the Decision

1. The appeal is admissible.

2. Admissibility of the appellant's request

2.1 The appellant filed what became its sole request during the oral proceedings, after the board had indicated its negative conclusion having regard to the amendments made to the claims of the main, first and second auxiliary requests then pending, that is to say, at a late stage of the proceedings. The appellant justified the late filing as resulting from the board's finding on the previous requests. The new request removed the wording objected by the board under Article 123(2) EPC. The new request replaced all the previous auxiliary requests on file and did not bring any new issue into the proceedings.

2.2 According to Article 13(1) of the Rules of Procedure of the Boards of Appeal any amendment to a party's case after it has filed its grounds of appeal may be admitted and considered at the board's discretion. The discretion has to be exercised in view of inter alia the complexity of the new subject-matter submitted, the current state of the proceedings and the need for procedural economy.

2.3 The appellant's new request is based on auxiliary request 17 on file, which is identical to auxiliary request 27 filed with the statement of grounds of appeal, and the amendment made overcomes the objections of the board concerning the failure of the previous requests. The claim is no longer directed to a method with separate steps for the temperature and pressure treating, which method claim was present in the previous requests. The request is also not very different from the only request which was before the opposition division, but with the further limitations of the process pressure and the composition of the meat emulsion with regard to the amount of protein, fat and moisture.

2.4 The board cannot accept the objections raised by the respondents that the new request brought up new issues under Article 123(2) EPC concerning the limitation of the pressure and the amount of the components of the meat emulsion. As indicated in the previous paragraph, these amendments were already present in auxiliary request 27 filed with the statement of grounds of appeal.

2.5 Thus, taking into account that the amendments made did not give raise to any matter which could have taken the respondents or the board by surprise, the board decided to admit the request into the proceedings.

3. Amendments

3.1 Claim 1 is based on claim 1 as granted (point I above), which itself is identical to claim 13 as filed with the following amendments:

- the temperature has been limited to the range of 140ºC to 154ºC, disclosed as the preferred range for carrying out the method for producing the meat emulsion on page 9, lines 13 and 26 and on page 10, line 3 [all page references to the application as filed];

- the pressure has been limited to the preferred range of 200 to 250 psi (1379 to 2413 kPa) disclosed on page 9, line 16 and on page 10, line 6; and

- the components of the meat emulsion formed in the first step of the process are specified as:

- "at least 29% by weight protein" as disclosed on page 3, line 12 and on claim 17 as filed;

- "4 to 7% by weight fat", disclosed in claim 17 as filed in combination with page 3, lines 27-28; and

- "49% to 53% by weight moisture" as disclosed on page 3, lines 30 and page 7, line 34.

3.2 The respondents objected to the amendments concerning the pressure and the amount of the components of the meat emulsion as these features were disclosed in the application as originally filed only in combination with other features not present in the amended claims. Consequently, the subject-matter of claim 1 was the result of an unallowable intermediate generalization.

3.3 However, in the board's judgement, this argument is devoid of merit. There is support in the application as filed for the combination of these features as presented in claim 1.

3.3.1 Thus, the specification as filed discloses on page 9, lines 10 to 19 an embodiment of the process wherein a preferred pressure of 200 to 350 psi is disclosed. In the next two paragraphs (page 9, line 20 to page 10, line 12) preferred equipment for carrying out the process is disclosed. In this embodiment also the preferred pressure varies from 200 to 350 psi. In view of theses disclosures, the skilled person would have readily recognized that the use of a higher pressure within the claimed range is not closely associated with a specific equipment but is a preferred range that applies to all embodiments of the invention. In other words, the skilled reader of the application as filed would clearly and unambiguously recognize that this preferred pressure range generally applies.

The same is true for the temperature range of 140 to 154ºC now required in claim 1. On page 9, lines 10-14, the treating of the meat emulsion is described in its broadest aspect. Within this broad aspect, 140 to 154ºC is presented as the preferred range. The same preferred range is found on page 10, lines 2-3 where a specific process of the claimed invention is described. Again, the skilled reader would immediately recognize that the preferred temperature range generally pertains to all embodiments of the invention.

3.3.2 As regards the disclosure of the amounts of fat, protein and moisture, the claimed process is directed to the preparation of a "meat emulsion product" wherein in the first step a "meat emulsion" is formed. According to page 7, lines 29-30 of the specification, "the resultant meat emulsion product should have a substantially similar profile to that of the starting ingredients". It follows from this sentence that the values disclosed in the application as filed for the "meat emulsion product" are also those of the meat emulsion formed in the first step.

This interpretation of the original disclosure was questioned by respondent 01, who noted that the application also disclosed that "if gravy or broth is added to the product, this profile could change due to the moisture, protein and/or fat content of the gravy/broth" (page 7, lines 30-31). However, this sentence relates to the possible addition of gravy or broth to the final meat emulsion product after it has been prepared by the method of claim 1 and not to a meat emulsion product obtained from the process of claim 1.

Specific support for the protein amount and for the upper limit of the fat range is found in claim 17 as filed and on page 3, line 12 of the application. The lower limit of the fat range, 4%, is disclosed on page 3, lines 27-28. Concerning the combination of end-values of the higher and the lower fat ranges, such combination of a preferred narrower range and one of the part-ranges lying within the disclosed overall range is unequivocally derivable from the original disclosure (see, for instance, T 2/81 OJ EPO, 1982, page 394 as discussed on Chapter III A.7.1 of the Case Law of the Boards of Appeal of the EPO 6th edition 2010).

Finally, the value for moisture of the meat emulsion is disclosed on page 3, lines 29 and 30 and on page 7, line 34.

3.3.3 As pointed out by respondent 01, on page 7, lines 26-28 of the application the amount of fat is disclosed in combination with 29 to 31% by weight protein. However, this is not the only place where the amount of fat is disclosed. As indicated above, a fat content of 4% to 6% by weight which is the basis for the lower amount of fat in claim 1 is disclosed on page 3, lines 27-28 independently of the protein amount and thus fully supports the amendment to claim 1.

3.4 The respondents did not raise any objection under Article 123(2) EPC against the remaining claims, i.e. dependent claims 2 to 10. The board too sees no reason to do so.

3.5 The amendments also clearly restrict the scope of the claims. The claims are now limited to a method using specific amounts of fat, protein and moisture and working with narrower ranges of temperature and pressure. Hence, the subject-matter of the claims fulfils the requirements of Articles 123(2) and (3) EPC.

4. Novelty

4.1 The opposition division acknowledged novelty of the subject-matter of the claims then pending, which were broader in scope than the present claims. No novelty objections were raised by the respondents against the present claims. The board sees no reason to raise an objection on its own.

5. Inventive step

5.1 The present invention relates to the production of a meat emulsion product having a meat-like appearance and texture. It is based on the finding that by selecting specific process parameters (such as the amounts of the starting components, temperature and pressure) better fibre development, that is to say, linear alignment with smaller, finer long fibres, is achieved (see [0032]).

5.2 The prior art cited during the proceedings includes several documents disclosing similar processes for the preparation of meat-like emulsion products. Documents D1 and D3a were cited by the respondents during the oral proceedings as representing the closest prior art. The appellant also relied on D1 as the closest prior art document.

5.2.1 Document D1 discloses a process for producing large diceable chunks of protein material having a fibrous texture closely simulating that of natural meat by an extrusion process (col. 2, lines 59-62 and figures). The process uses high pressure steam which is injected into the protein slurry. Pressures in the range of 80 to 150 psi (552 kPa to 1034 kPa), preferably 110 to 120 psi (758 kPa to 827 KPa), are preferred (col. 5, lines 14-17). The temperature used ranges from 310 to 350ºF (154 to 176ºC), preferably 325 to 330ºF (163 to 166ºC) (col.5, lines 19-26). The protein material employed in the process must contain at least 70% protein on a solids basis to achieve a product possessing the requisite texture and mouth feel (col. 4, lines 28-31). The amount of fat and moisture are not specified in D1. The composition used in example 2 has a calculated composition of: 54,8% moisture, 39,0% protein and 4,4% fat (cf. A11, page 2, first paragraph of "Results & Discussion").

5.2.2 Document D3a discloses also an extrusion process for the preparation of products having a meat-like image (page 4, lines 8-12). The process is carried out using a biaxial extruder at a temperature between 80 and 180ºC and a pressure not specified (page 4, lines 50-52). The composition of the meat emulsion is also not specified in D3a but it has been calculated by respondent 01 for example 3 as being: 57,4% moisture, 26.7% protein and 6,0% fat (cf. A10, page 2 under "Results").

5.3 Having regard to this prior art, the appellant saw the problem underlying the present invention as to find a method for providing an improved meat emulsion product.

The respondents, on the other side, saw the problem underlying the invention merely in the provision of a further method of making textured meat products.

5.4 The question whether the claimed method provides an improved product or merely an alternative product to the known prior methods is the key point of the present case and was hotly disputed during the proceedings. The appellant and respondent 01 filed experimental evidence during the appeal proceedings (cf. documents A1 to A9 and A10, A11 respectively), including the repetition of the teaching of prior art documents D1 and D3a, in order to support their arguments.

5.5 The board, after having carefully considered the arguments and experiments filed, concludes that the evidence on file shows that the claimed process indeed produces improved products over the prior art documents D1 and D3a, for the following reasons:

5.5.1 The appellant reproduced the conditions described in example 1 of D1 (cf. A6) and concluded that the conditions described in this example did not produce any fibres which could be described as long, linear and in bundles (see Figure 1 of A6).

This finding was contested by respondent 01, who maintained that example 1 was not the closest individualised disclosure in D1 as its composition did not contain meat. Respondent 01 then repeated example 2 of D1 which uses a mixture of vegetable protein and chicken meat (A11) and concluded that it is possible to make meat emulsion products having a realistic meat appearance using the process of D1.

However, the conclusion of respondent 01 is not based on the repetition of example 2 of D1, as is apparent from document A11. The repetition of the recipe of example 2 of D1 gave a mixture which could not be conveyed into the steam pipe (cf. A11 Results & Discussion, wherein it is concluded that "no products derived from this trial"). Only a modification of the recipe used in example 2 enabled respondent 01 to achieve a product with typical meat-like fibres (A11, trial 3). However, this experiment was made by replacing the soy protein with wheat gluten. Consequently, this experiment does not represent the true teaching of example 2 of D1, which uses soy protein, a preferred feature of D1 which is used in all the working examples (see also col. 4, lines 31-32).

Thus, the experimental evidence provided by both parties confirms that the products of a re-working of examples 1 and 2 of D1 are of inferior meat-like appearance to the products obtained by the method of claim 1 of the patent in suit.

5.5.2 The appellant also repeated example 3 of D3a and was unable to prepare a product similar to meat (cf. A8, conclusions).

Respondent 01 criticized the appellant's reproduction of example 3 of D3a and carried out an own repetition of example 3 of D3a obtaining a product having a realistic meat-like image (cf. A10).

Here again respondent 01 modified the teaching of D3a using a high shear screw configuration. In A10 the screw speed ranged from 200 to 400 rpm, well above the values preferred in D3a (page 4, lines 53-53). Thus, the repetition of example 3 of D3a by respondent 01 is not a repetition of the example, the teaching of document D3a having been modified in a way going away of the teaching of D3a. Consequently, the results of the appellant were not effectively challenged.

5.5.3 Additionally, annexes A1 to A5 show that working within the claimed ranges of temperature, pressure, protein content, fat content and moisture content, results in remarkably improved meat emulsion products having long, linear, bundled fibre development. The results in A1 to A5 also show that working outside the claimed ranges results in products with no long, linear, fibre development.

5.6 In view of the conclusions above, the technical problem underlying the patent in suit is seen in the provision of a method for providing an improved meat product.

5.7 As a solution to this problem, the patent in suit proposes the process of claim 1 wherein a meat emulsion containing specific amounts of protein, fat and moisture is first formed and then treated at a temperature of 140ºC to 154ºC and a pressure of 200 psi to 350 psi (1379 kPa to 2413 kPa).

5.7.1 The experimental evidence filed during the appeal proceedings discussed in paragraph 5.5 above shows that this problem has been credibly solved by the claimed measures.

5.8 Obviousness

5.8.1 It remains to be decided whether, in view of the available prior-art documents, it would have been obvious for the skilled person to solve the above-defined technical problem by the claimed combination of technical features.

5.8.2 There is no hint to this solution in the prior art cited by the respondents.

Although some of the ranges for the parameters of claim 1 overlap with the values known from the prior art, there is no hint in the prior art documents that by selecting the claimed values, improved meat-like products could be obtained. Unexpectedly good results are obtained only when working within the values claimed. Thus, for instance, annex 4 shows that long linear bundled fibre development is achieved when using 4 to 7% fat content, but not when working slightly outside of the claimed range (cf. examples using 3% and 9% fat). Similar considerations apply to the other parameters, which give excellent results only working above certain values (cf. annexes A1-A3 and A5).

The fact that some of the parameters now claimed are encompassed by the ranges used in the prior art processes does not mean that it would have been obvious for the skilled person to combine them purposively with the aim of solving the existing technical problem. This combination is not merely the result of an optimisation within the competence of the skilled person, since in the prior art the values now used are not mentioned in relation to the problem now to be solved.

Also, the fact that some of the examples provided by the appellant also show improved properties outside the claimed ranges cannot bring into question the inventiveness of the selected ranges. They merely show that good results could also be obtained even if one of the parameters is outside the claimed range.

5.9 In view of the above, the board concludes that the person skilled in the art would not have arrived in an obvious manner at the subject-matter of claim 1. Consequently, the subject-matter of claim 1 and, by the same token, the subject-matter of dependent claims 2 to 10, involves an inventive step within the meaning of Article 56 EPC.

6. At the oral proceedings the appellant provided a description adapted to the claims of its sole request. No objection was raised by the respondents against theses amendments to the description, and the board does not have any of its own.