5.2.2 Differences in values

In T 74/98 the board found no reason to round up figures obtained by converting prior art values originally expressed in a different unit of measurement. It was evident that any rounding-up following the conversion of these figures into molar amounts would affect the definition of those compositions. The board noted that it was also evident that the true meaning of a specific disclosure could not be influenced by the units chosen to express it and that the objection of lack of novelty relied on an ambiguity introduced artificially by the appellant.

In T 1186/05 the board drew a distinction between the case before it and the case before the board in T 74/98. In the latter case, the board had considered that rounding up to the next integer (thus matching the lower limit of the claimed "inventive" range) of a component's molar percentage having two decimal places, calculated by conversion from its weight proportion, was not justified because (i) this would lead to a broadening of the claimed range and (ii) reconversion of the rounded molar percentage to the corresponding weight proportion would also imply a modification of the latter, i.e. would alter the true meaning of this specific disclosure. However, in the case before it, the board in T 1186/05 pointed out that rounding up was required, in order to enable two density values to be compared, each one reflecting a "true" density value having three (or more) decimal places, but expressed to a different degree of accuracy, i.e. one having three and the other one having only two decimal places. Thus, the rounding exercise put the claimed and the prior art density values on the same level by using the mathematical rule existing for that purpose. This exercise had no impact on the density value as disclosed in the prior art document (see also T 708/05).

In T 234/09 the board observed that the claims defined the fibre composition in terms of numerical ranges of its constituent parts' percentage by weight, the appellant patent proprietor having chosen to express most of those ranges' limits as whole numbers. It found that, in the context of the patent in suit, the skilled person would appreciate that the whole numbers defining the limits of the ranges in claim 1 were not to be understood as whole numbers in the mathematical sense, and that they were therefore to be seen as limits deliberately expressed in a less precise form than the decimal numbers set out in the patent specification. Consequently, they also included the decimal numbers from which they resulted on application of the rules on rounding up numbers. It noted that the boards had already taken a similar approach in comparable cases (see e.g. T 1186/05). Two of the decisions cited by the appellant had concerned situations in which, by contrast with the specific circumstances of the case in hand, there had been no particular reason to round up a figure disclosed only implicitly in the prior art (see T 74/98, T 646/05). The board concluded that the percentage in the prior art, as rounded up for the purpose of comparison, could not be distinguished from the upper limit in claim 1 and that, therefore, the subject-matter of that claim was not novel.

In T 871/08 of 8 December 2011 date: 2011-12-08 prior art document D9 related to a method for hydrogen peroxide production by an anthraquinone method. The respondent had argued that the claimed subject-matter was novel, because the value 2.996 was lower than the lower limit of 3:1 defined in claim 1 at issue. This argument was not accepted by the board. When comparing a value from the state of the art (the value "2.996") with those claimed (the range of values "from 3:1 to 9:1"), the state of the art value had to be given the same accuracy as the one claimed. In the case at issue, the values in the claims had been quoted without any digit after the comma, which meant that for comparison purposes, the value 2.996 had to be rounded up to 3, which thus fell into the range of the claimed values (see, in particular, T 1186/05, T 708/05).

In T 686/96 claim 1 related to a composition with a feature (iv) requiring a Perspex^® abrasion value (PAV) in the range from about 12 to about 20 PAV. A prior art document disclosed in example 2 a composition having features (i) to (iii) of claim 1. With respect to novelty it had to be decided whether the known composition also had an abrasion value as required by feature (iv) of claim 1. The board established that the abrasion value of the known composition was somewhat below the lower value indicated in feature (iv) of the claim. Since the lower limit in the claim 1 was defined as "about 12", some interpretation was necessary. The board held that, when deciding on the novelty of the subject-matter of a claim, the broadest technically meaningful interpretation of a claim should be taken into account. In the board's view the scope of claim 1 was to be construed to mean that the indicated lower limit corresponded to the value disclosed in the prior art. Claim 1 was then considered to lack novelty. By contrast, in T 2437/13 (nucleic acid sequences), the degree of sequence identity as defined in claim 1 represented the ratio (expressed in %) of identical nucleotides between a query nucleotide sequence that is pairwise aligned with a target nucleotide sequence, and the total number of aligned bases. Both numbers were integers which could be counted with absolute precision. Two bases either matched or did not. There was no error possible in calling two bases a match or not. The counting of matches could be repeated and would have led to the exact same result every time. There was no error of measurement or estimation and no error propagation in the calculated percentage sequence identity and hence no reason for rounding up the calculated ratio when it came to calculating the degree of sequence identity.