b) Combination of the lower limit of the general range with the lower limit of the preferred range 

In T 1170/02 the board held that the combination of the lower limit of the general range with the lower limit of the preferred range, thus excluding the preferred range, did not fall under the principles developed in decision T 2/81 (OJ 1982, 394). In such a case, it might be useful to ask whether the skilled reader of the parent application would seriously contemplate working in the range referred in the divisional application or alternatively whether there was anything in the parent application as filed or his common general knowledge which would cause him to exclude the possibility of working in that range (with reference to T 187/91, OJ 1994, 572). To the board, the skilled person would, in view of the data in the parent application, seriously consider working beyond the lower limit of the preferred range as well. Under these circumstances, the range could be directly and unambiguously derived from, and is consistent with, the parent application as originally filed. See also T 1389/08 and T 205/13.

Likewise, in T 1389/08, the board considered that the skilled reader would seriously contemplate exploiting the whole disclosed range, including the less suitable range. There was nothing in the parent application as filed or the common general knowledge which would cause the skilled reader to exclude the possibility of working in that range.

In T 612/09, however, the board did not agree with the finding of T 1170/02 that the principles developed in T 2/81 (OJ 1982, 394) were not applicable to situations where the range resulted from the combination of the lower limit of the general range with the lower limit of the preferred range. The board in T 612/09 observed that T 2/81 had established a two-step approach. In the first step, it had considered that the two part-ranges of the general range (in T 612/09: 3 to 75 mg/kg) lying outside the preferred range (in T 612/09: 10 to 25 mg/kg) would be unequivocally and immediately apparent to the person skilled in the art. It had then considered that no new matter was introduced by combining the preferred range with the upper part-range. The board in T 612/09 considered that only the first step of the analysis carried out in decision T 2/81 was necessary to arrive directly and unambiguously at the claimed range. Indeed, the board held that the two part-ranges lying within the overall range on either side of the narrower range (a dose of 3 to 10 mg/kg and a dose of 25 to 75 mg/kg) were directly and unambiguously disclosed to the person skilled in the art. See also T 2159/11. In T 612/09 the board further noted that it could not derive from decision T 201/83 the requirement that the value on which a sub-range was to be based had necessarily to be disclosed in an example.

In T 113/19 the board explained that, although the sole example was not covered by the newly claimed range, this did not mean that range could not be directly and unambiguously derived from the application as filed (T 1389/08). In its view, a person skilled in the art reading the application as filed in the case in hand would regard a composition as having the required property if it had (for the feature in question) a value that was at least equal to the lower threshold of the general range, but would deem those compositions with values above the upper threshold to be even better. The board concluded that the range as claimed – which was limited to what could be deemed satisfactory and excluded anything considered even better – was directly and unambiguously inferable from the teaching of the application as filed.