T 1399/13 11-07-2018

Main request

1. Priority claim and novelty in view of D8

1.1 The opposition division concluded that the priority of D1 was not validly claimed and that D8, which was as a result a document according to Article 54(3) EPC, and in particular its example 1, was novelty destroying for claim 1 of the main request (points 3.1 and 3.2 of the reasons).

1.2 Example 1 of D8 discloses the polymerization of VCM under continuous metering of Trigonox 187 as organic peroxide initiator (paragraphs 23 and 25). Trigonox 187 is the organic peroxide initiator used in the examples of the patent in suit. It was not disputed that at 57°C, the polymerization temperature according to example 1 of D8, Trigonox 187 has a half life in the claimed range of 0.0001 h to 1 h. That can also be derived from the data provided on pages 3, 6 and 7 of D9. Furthermore, the description made of example 1 in D8 does not mention the use of a radio frequency dielectric heating. Thus the only question that remains in view of example 1 of D8 is whether it discloses that the initiator was added to the polymerization mixture at the reaction temperature when the pressure in the polymerization reactor is dropping due to the depletion of the vinyl chloride monomer.

1.2.1 According to Table 1 of D8, 330 ppm of peroxide are added to the reactor over 12 min and 670 ppm are subsequently added over 220 min (232 min of peroxide dosage in total). Also, 200 ppm of PVA are added to the reaction mixture before heating and 800 ppm are subsequently metered in 220 min together with the peroxide. D8 discloses that the constant pressure time is 195 min (3 h and 15 min) before the pressure dropped in the course of the polymerization. Since the peroxide initiator is added for a total period of 232 min, it is deduced that some organic peroxide initiator is added during the pressure drop phase in the reactor.

1.3 It is clear from the statement of grounds of appeal (point 3) that it was not contested that example 1 of D8 anticipates claim 1 of the main request. It was also not disputed in appeal that document D1, from which priority is claimed, does not disclose the whole breadth of the subject matter of claim 1 of the main request. Rather, the question that needs to be answered in appeal is whether the first priority date of the patent in suit (21 December 2001, the filing date of US 342434 P or D1) is valid at least for the subject matter of the main request that is also disclosed in example 1 of D8.

1.4 D1 (claim 1) relates to a process for polymerizing vinyl chloride monomer and optionally further monomers using one or more organic initiators, with at least part of said initiators being dosed to the polymerization mixture at the reaction temperature, characterized in that essentially all of the organic initiator used in the polymerization process has a half life of from 0.0001 h to 0.05 h at the polymerization temperature.

1.4.1 In the whole of D1, a pressure drop can only be derived from the description of the polymerization process of example 1. That example discloses the polymerization of VCM at 68°C under continuous dosing of Trigonox 187 as organic peroxide initiator. According to Table 1 of D1, 500 ppm of peroxide are added over 30 min and subsequently 300 ppm/h during 2.5 h, meaning that in total, peroxide is added over 3 h in the course of the polymerization process. The constant pressure time during that polymerization is 2.5 h, after which the pressure drops (page 8, line 16). It can thus readily be deduced therefrom that the pressure drops (after 2.5 h) while peroxide is still being added to the reactor (up to 3 h).

1.4.2 Since example 1 belongs to D1 from which priority is claimed, it can form the basis for a priority claim for claim 1 of the main request but only inasmuch as the disclosure in example 1 of D1 is concerned. Indeed, in decision G 1/15 (OJ EPO 2017, A82) the Enlarged Board of Appeal has acknowledged the concept of partial priority and has decided that "entitlement to partial priority may not be refused for a claim encompassing alternative subject-matter by virtue of one or more generic expressions or otherwise (generic "OR"-claim) provided that said alternative subject matter has been disclosed for the first time, directly, or at least implicitly, unambiguously and in an enabling manner in the priority document" (see Order). In point 6.4 of decision G 1/15, the Enlarged Board of Appeal explained that, in assessing whether a subject-matter within a generic claim may enjoy partial priority, the first step is to determine the subject-matter disclosed in the priority document. The next step is to examine whether this subject-matter is encompassed by the claim of the application or patent claiming said priority. If the answer is yes, the claim is de facto conceptually divided into two parts, the first enjoying the priority corresponding to the invention disclosed in the priority document, the second being the remaining part not enjoying this priority.

1.4.3 The process of example 1 of D1, which forms the basis of the priority claim, differs however from that of example 1 of D8 in several instances. The first difference is in the temperature of the reactor which corresponds to the polymerization temperature. While that temperature is 68°C in D1 (page 7, line 27), it is set to 57°C in example 1 of D8 (page 6, line 29). That difference in temperature is significant for the polymerization process since it impacts the half life of the peroxide in the reaction medium and has some repercussions on the quantity of initiator ultimately dosed and the amount of heat released in the course of the polymerization process (D1: page 1, line 15 to page 2, line 8 and D8: page 2, lines 9-21). Furthermore, example 1 of D8 discloses a polymerization process in which the polyvinyl alcohol (PVA) added as a protective colloid is dosed with the initiator, which has an impact on the disclosed process since by metering both the initiator and the protective colloid, the efficiency of the initiator is improved, increasing the polymerization rate, shortening the polymerization times and increasing the pressure drop rate (paragraph 6 of D8). By contrast, the protective colloid is added to the reactor prior to the initiator in D1 (page 7, lines 21-23). These differences in the polymerization processes according to example 1 of D1 and example 1 of D8 are therefore significant for the course of the process and the phase of the pressure drop. The priority claim that can be derived from example 1 of D1 does therefore not correspond to the disclosure of example 1 of D8. As a result, example 1 of D8 is novelty destroying for claim 1 of the main request.

1.4.4 The present situation differs from case T 665/00 cited by the appellant in support of its position. In T 665/00 the subject matter of an alleged prior use which fell within the scope of the claims of the patent was described in the priority document. As the priority document did not necessarily describe all the subject matter claimed, the question was whether different elements of a patent application could have different priority dates. In the present situation, the question to be answered pertains instead to the differences between the document from which priority is claimed (in particular an example therein) and the examples of a document cited against the novelty of the claimed subject matter. The conclusion reached in T 665/00 does therefore not apply to the present case.

1.5 The same conclusion on novelty applies to claim 1 of the main request in view of example 2 and the comparison examples of D8 and in view of D8' which content is the same as that of D8. The main request does therefore not satisfy the requirements of Article 54 EPC.

Auxiliary request 1

1.6 Auxiliary request 1, which contains three claims, was filed by the appellant with the statement setting out the grounds of appeal, i.e. pursuant to the requirements of Article 12(1) and (2) RPBA. The claims of that request are based on the first auxiliary request filed with letter dated 20 November 2012 (claims 1 and 2) from which however independent claim 3 was deleted and replaced by a dependent claim 3 which was already part of the granted claims since it corresponds to its dependent claim 5. The presence of two independent claims was one of the reasons why the opposition division rejected the first auxiliary request (under Rule 80 EPC, contested decision, point 4.1). Auxiliary request 1 filed in appeal can therefore be seen as having been filed in an attempt to address the decision of the opposition division regarding Rule 80 EPC, while not substantially changing the subject matter of the request. The Board sees on this basis no reason to hold auxiliary request 1 filed with the statement setting out the grounds of appeal inadmissible pursuant to Article 12(4) RPBA.

2. Sufficiency of disclosure

2.1 In its reply to the statement of grounds of appeal, respondent 1 made an unspecific reference to arguments pertaining to an alleged sufficiency of disclosure submitted during opposition proceedings against unidentified claims.

2.1.1 In the communication pursuant to Article 15(1) RPBA, the Board drew the attention of the respondent to the requirements of Article 12(2) RPBA, requiring that the statement of grounds of appeal and the reply thereto had to contain a party's complete case. In particular, it was indicated that these submissions had to set out clearly and concisely the reasons why it was requested that the decision under appeal be reversed, amended or upheld, and had to specify expressly all the facts, arguments and evidence relied upon and that a mere reference to the written arguments, documents and facts that had been filed during first instance proceedings was not considered to constitute a party's complete case (see point 8.1 of the communication).

2.1.2 Respondent 1 did not provide a clarification of its unspecific objection of lack sufficiency of disclosure submitted during opposition proceedings, neither in the later letter dated 11 June 2018, nor at the oral proceedings before the Board during which the respondent merely referred to the arguments provided in writing. Thus, neither the Board nor the other party was in a position to consider the objections of respondent 1 and establish whether they justified setting aside the decision of the opposition division on sufficiency of disclosure (contested decision, point 5.3). Under these circumstances, the Board finds that there is no reason to set aside the decision of the opposition division on the grounds of these unspecified arguments.

2.2 Additionally, lack of sufficiency of disclosure was raised against claim 1 by respondent 1 as neither claim 1 nor the description of the patent in suit mentioned the solvent in which the half life of the claimed initiator had to be measured. Also, the patent did not disclose the initial concentration of the solution used to perform the determination of the half life of the initiator and did not define the precision of the method of determination of the half life of the initiator.

2.2.1 With regards to the selection of the initiator, the patent in suit discloses a list of suitable compounds (paragraph 11) and additionally teaches that other organic peroxides having a half life ranging from 0.0001 to 1 hour at the polymerization temperature can be used. The description further indicates that the determination of whether a peroxide is suitable and has the required half life can be made by conventional thermal decomposition studies in monochlorobenzene, as was well-known in the art. In that respect, the description further refers to a brochure "Initiators for high polymers" available from Akzo Nobel (paragraph 12). The Board thus considers that the patent in suit provides a guidance to the skilled person as to the choice of initiators suitable for the claimed process.

2.2.2 Based on documents D23 to D27, which had been filed with the reply to the statement setting out the grounds of appeal, respondent 1 contended that the claimed subject matter was nevertheless not sufficiently disclosed.

2.2.3 D23 to D27 are all documents of the prior art showing that the half life of a given peroxide is a parameter whose value will depend on the conditions under which it is determined, notably the temperature, the nature of the solvent and the initial concentration of the peroxide in the solution. These documents show that the variation of the half life value as a function of these conditions is a phenomenon that was well established in the art at the priority date of the patent in suit and that the determination of the half life of a peroxide was also extensively known to a skilled person, including in chlorobenzene as a solvent as suggested in the patent in suit (D25: last line of the table and D27: table B).

2.2.4 The Board finds that even if the documents D23 to D27 were found to show that the value of the half life of the initiator indeed depends on factors like the solvent in which the measurement is performed or the initial concentration of the initiator in that solvent, the arguments of respondent 1 based on these documents solely relate to a lack of accuracy of the measurement, which is an objection of lack of clarity, and not to an objection of lack of sufficiency of disclosure, since it has not been shown that a skilled person would not be in the position to determine the half life value of a given peroxide under a given set of conditions and to perform the subject matter as claimed.

2.2.5 With respect to sufficiency of disclosure, the relevant question is whether the skilled person would have been able to perform the process according to claim 1 of the main request on the basis of the guidance found in the patent in suit. In the present case, the reply to the statement of grounds of appeal of the respondent 1 does not show how the possible discrepancies observed for the measurement of the half life of the organic peroxide initiator would have prevented the skilled person to conduct the process, all the more so as documents D9, D23, D26 and D27 actually show that the skilled person can find sufficient guidance in the general prior art to select an initiator among the wide range of known initiators additionally satisfying the requirement concerning its half life at any given temperature as set out in claim 1 of auxiliary request 1. No further arguments were provided by respondent 1 at the oral proceedings before the Board in that respect.

2.2.6 As to the precision of the method of determination of the half life of an organic peroxide, respondent 1 alleged but did not show how that would prevent a skilled person from performing the claimed subject matter. The question of whether it could be determined whether a specific value of half life would, given the uncertainty affecting the precision of any measurement, fall under the claimed subject matter or not, is a question of clarity and not a question of sufficiency of disclosure.

2.2.7 Therefore, there is no reason in the light of the submission made by respondent 1 to conclude that the subject matter of auxiliary request 1 lacks sufficiency of disclosure.

3. Disclaimer

3.1 Claim 1 of auxiliary request 1 is defined by a disclaimer referring to a step of radio frequency dielectric heating and a disclaimer meant to exclude four examples of D8. While the first disclaimer was present in claim 1 of the application as originally filed, the second disclaimer is intended to exclude the examples of D8, a document according to Article 54(3) EPC (see point 1. above).

3.2 The disclaimer made in view of the examples of D8 in claim 1 of auxiliary request 1 essentially defines the type of polymerization (suspension), its temperature (57°C), the presence of a specific protective colloid (1000 ppm of polyvinyl alcohol) and the metering of specific peroxides in the course of the polymerization process which contains two parts, a first part (i) intended to disclaim example 1 as well as its comparison example reported in Table 1 of D8 and a second part (ii) intended to disclaim example 2 and its comparison example as reported in Table 2 of the same document.

3.2.1 The disclaimer in claim 1 of auxiliary request 1 is crafted around the main features of the polymerization process according to D8, a polymerization process whereby an organic initiator and a protective colloid are metered at the polymerization temperature (claim 1 and paragraph 6). It is formulated so as to exclude the aspects shared by the examples first (polymerization type, monomer, reaction temperature, presence of polyvinyl alcohol), followed by the aspect relating to the metering of the specific peroxide initiators (parts (i) and (ii)) as disclosed in Tables 1 and 2. As such, that disclaimer is not only concise, it is also specific, since it ultimately discloses polymerization processes performed at one temperature only (57°C), involving one monomer (VCM) and concerning specific organic peroxides (diisobutanoyl peroxide and 1-(2-ethylhexanoylperoxy)-1,3-dimethylbutyl-1-peroxypivalate).

3.3 Respondent 1 considered that the disclaimer added to claim 1 in view of D8 did not fulfil the criteria set out in G 1/03 (OJ EPO 2004, 413) and was therefore not allowable under Article 123(2) EPC on the grounds that the formulation chosen excluded more than what was disclosed in the examples of D8 and therefore more than necessary to restore novelty. In that respect, D8 disclosed a number of parameters that had not been included in the disclaimer and that were found to be necessary to the definition of the disclaimer by respondent 1: the volume of the reactor disclosed in D8, the mixing equipment used in the reactor, the repeated purges with nitrogen, the volume of water used in the polymerization process, specifics regarding the polyvinyl alcohol and vinyl chloride used (pages 8 and 9 of the reply to the statement setting out the grounds of appeal of respondent 1). Moreover, claim 1 of auxiliary request 1 lacked clarity since the formulation of the disclaimer did not indicate the starting point of the metering of the organic peroxide that was disclaimed and the number of disclaimers in claim 1 rendered that claim unclear.

3.3.1 With regard to the conditions that the disclaimer meets the requirements of clarity and conciseness and does not remove more than necessary to restore novelty, both explicitly indicated in G 1/03 (see headnote, points 2.2 and 2.4), the Board concurs with the positions expressed in T 2130/11, points 2.9 and 2.10. In particular, the difficulty for a patent proprietor in formulating an allowable disclaimer cannot justify an exception in the application of Article 84 EPC which is not foreseen in the Convention, not even with regard to the condition on the allowability of a disclaimer requiring that a "disclaimer should not remove more than is necessary to restore novelty". Rather, that condition should be applied while taking into consideration its purpose, namely that the "necessity for a disclaimer is not an opportunity for the applicant to reshape his claims arbitrarily" (G 1/03, supra, point 3 in the reasons, second paragraph, last but one sentence).

3.3.2 The consequence of this, as clearly set out in T 2130/11, is that there are situations in which, while fulfilment of the condition taken in a strictly literal way would not be possible, a definition of the disclaimed subject-matter which satisfies the requirements of Article 84 EPC and fulfils the purpose of the condition (i.e. to avoid an arbitrary reshaping of the claims) may be achievable. In other words, a disclaimer removing more than strictly necessary to restore novelty would not be in contradiction with the spirit of G 1/03, if it were required to satisfy Article 84 EPC and it did not lead to an arbitrary reshaping of the claims.

3.3.3 It is the view of the present Board that the formulation of the disclaimer with respect to D8 as present in claim 1 of auxiliary request 1 corresponds exactly to this situation in that even if the disclaimer in its present form may be seen as formally removing more than is strictly necessary to restore novelty over D8, it avoids clarity problems and cannot be held to be in contradiction with the spirit of G 1/03 as it does not lead to an arbitrary reshaping of the claims. In particular, a formulation of the disclaimer including all the data and process steps as disclosed in the experimental part of D8 (paragraph 23) would indeed deprive the claim of its conciseness and render its wording unclear (Article 84 EPC). Besides, while it is not disputed that the features of the process of the examples according to D8 that have not been included in the formulation of the disclaimer in claim 1 may ultimately have an effect on the course of the polymerization, it has not been shown how the absence of these features in claim 1 of auxiliary request 1 may lead to an arbitrary reshaping of the claims, nor has the Board any reason to consider that it is the case.

3.4 With respect to the presence of separate disclaimers in claim 1 of auxiliary request 1, the subject matter they concern, radio frequency dielectric heating and the examples of D8, was not shown to be related in any way or create any uncertainty as to what is disclaimed. The Board does therefore not find that their presence in claim 1 of auxiliary request 1 infringes the requirements of Article 84 EPC.

3.5 The Board concludes from the above that the disclaimers present in claim 1 of auxiliary request 1 do not contravene the requirements of Articles 123(2) and 84 EPC.

4. Admittance of D18, D19, D20, D21 and the simulations provided with the letter of 11 June 2018

4.1 D19, D20 and D21 were filed by respondent 1 with the reply to the statement setting out the grounds of appeal dated 5 March 2014, i.e. pursuant to the requirements of Article 12(1) and (2) RPBA.

4.1.1 These documents were cited in reply to the reasoning of the opposition division in the contested decision not admitting D18 into the proceedings on the grounds that that document had been filed late and that it had not been shown that the computer simulations it was based upon were a sufficient proof to demonstrate that the addition of initiator after the pressure drop was a feature that was implicitly disclosed in examples 2, 3 and B of D6 (contested decision, point 5.6).

4.1.2 D19 to D21 are meant to provide evidence that the computer simulations provided in D18 were reliable since some of the simulations performed therein were confirmed by actual measurements provided in D19 to D21. Documents D19 to D21 thus address one of the main grounds which led to D18 not being admitted and can be seen as a reasonable reaction to the decision. The Board sees therefore no reason to hold D19 to D21 inadmissible pursuant to Article 12(4) RPBA. Since the information contained in these documents is based on and refers to the data provided in D18, D18 is admitted into the proceedings as well.

4.2 The simulations additionally provided by respondent 1 with letter of 11 June 2018 are meant to establish the influence of the water to VCM ratio on the result of the simulations of D18. These additional simulations were filed on 11 June 2018, in response to the point concerning an alleged discrepancy between the water to VCM ratio used in D18 and in the examples of D6 which was first raised in appeal by the appellant in its letter dated 8 May 2018. These simulations were therefore filed by respondent 1 at the earliest opportunity after it became aware of the objection against D18. The Board therefore finds it appropriate to make use of its discretion under Article 13(1) RPBA by admitting the simulations into the proceedings.

5. Novelty in view of D6

5.1 Novelty of claim 1 of auxiliary request 1 was contested by the respondent in view of examples 2 and 3 of D6. These examples disclose a process wherein diisobutanoyl peroxide is used as an initiator in the polymerization of vinyl chloride (VCM) at 57°C and the whole of the initiator is dosed over time in the course of the polymerization reaction.

5.2 Table II of D6 reports that the dosing time of the initiator was 2h in the case of example 2 and 4h in example 3. It was undisputed that it could not be concluded from D6 alone whether the initiator had been added to the polymerization mixture when the pressure in the polymerization reactor was dropping due to the depletion of the vinyl chloride monomer.

5.3 Respondent 1 argued in appeal that computer simulations of the polymerization processes of examples 2 and 3 of D6 were performed on the basis of the process parameters disclosed in D6 as well as data generally available in the art. These computer simulations were shown in two graphs of D18 ("Simulation of Example 2 of WO 00/17245" and "Simulation of Example 3 of WO 00/17245") and showed according to respondent 1 that the pressure in the polymerization reactor was already dropping in the course of the polymerization process before the end of the addition of the peroxide initiator at the reaction temperature, so that the condition in claim 1 was met.

5.4 As a preliminary remark it is noted that the reference to paragraph 9 of the patent in suit, which concerns the definition of the wording "after the start of the pressure drop and/or during the pressure drop" is not applicable to the interpretation of the claimed subject matter, at least because a different wording is used in claim 1 ("when the pressure in the polymerization reactor is dropping"). The use of that definition in the context of the computer simulations provided by respondent 1 is thus irrelevant to the question of novelty of claim 1 of auxiliary request 1.

5.4.1 Regarding the computer simulation of example 2 of D6 ("Simulation of Example 2 of WO 00/17245"), the graph provided in D18 showed that a drop pressure in the reactor was recorded starting after the mark 120 min (2 h) was reached, up until the end of the simulation at the mark 125 min, as evidenced by the curve P Reactor (bara) on the graph. The peroxide initiator according to the polymerization process disclosed in D6 was dosed to the reactor from the start of the heating up phase (D6, page 7, lines 26 and 27) which corresponds to the mark 0 min on the graph provided in D18. The dosage of the peroxide initiator simulated in D18 is based on the data provided in Table II (page 9) of D6, indicating that the dosing time of the peroxide initiator was 2 h. It can be readily concluded therefrom that the dosage of the peroxide initiator (up to the mark 2 h) was already completed when the pressure in the reactor started to drop (after 2 h). Under these circumstances, even if it is accepted that the simulation of example 2 of D6 provides an accurate reproduction of the example, no proof has been provided that the disputed condition of claim 1 is met (actually the contrary has been shown).

5.4.2 With regard to the computer simulation of example 3 of D6 ("Simulation of Example 3 of WO 00/17245"), the graph provided in D18 showed that a drop in pressure in the reactor was recorded starting after the mark 160 min (2 h and 40 min) was reached, up until the end of the simulation at the mark 175 min, when the conversion of the monomer reached 90% approximately, as evidenced by the curves P Reactor (bara) and mass conversion (%) on the graph. The data provided in Table II (page 9) of D6 indicate that the peroxide initiator was dosed to the reactor over 4 h, after which the conversion of the monomer reached 90% (Polymer yield in Table II). Both D6 and D18 report a monomer conversion of 90% at the end of the polymerization reaction in the case of example 3. However, the 90% monomer conversion was reached after dosing the initiator for 4 h in D6 whereas the same conversion was achieved after only 2 h and 40 min (175 min) in the computer simulation provided in D18. In that regard, the question that the Board had to answer was whether the computer simulation provided in D18 could be seen as an accurate representation of the polymerization process of example 3 of D6 in spite of the relevant difference in the duration of the polymerization to reach a monomer conversion of 90%.

5.4.3 The interpretation of the temperature profiles and monomer conversion in the course of the computer simulation of the polymerization process of example 3 in the graph of D18, as provided by the appellant on pages 3 and 4 of the letter dated 8 May 2018 and at the oral proceedings, renders credible the argument that the simulations provided in D18 were based on a water to VCM ratio that is lower (1:1 was suggested) than that derived from D6 (4:1). That argument is also congruent with the shorter duration of the polymerization simulated in D18 (2 h and 40 min) as compared to the polymerization performed in D6 (4 h), since a more concentrated monomer solution (e.g. water to VCM ratio of 1:1) is expected to reach a given conversion in the course of its polymerization sooner than when the monomer solution is more diluted (e.g. water to VCM ratio of 4:1).

5.4.4 Respondent 1 did not contest the argument that the computer simulation of example 3 in D18 were carried out under the premise of a water to VCM ratio lower than that used in example 3 in D6. Instead, additional data was provided in a letter of 11 June 2018 containing three additional computer simulations of the polymerization of example 3 of D6 obtained at water to VCM ratios of 1:1, 2:1 and 4:1 (the reference to example 2 in that letter was corrected by respondent 1 in the course of the oral proceedings before the Board). While the graphs provided in that letter show that an increasing water to VCM ratio has little impact on the overall course of the computer simulation, the data made available by respondent 1 confirm more importantly that a monomer conversion corresponding to that reported in example 3 of D6 is consistently obtained after only 175 min of initiator addition, as already established in the simulation provided in D18.

5.4.5 Whether the discrepancy regarding the duration reported for reaching a monomer conversion corresponding to the end of the polymerization process in D6 and in the computer simulations provided by respondent 1 is effectively due to the water to VCM ratio or to another parameter of the polymerization is not relevant to answer the question posed above under point 5.4.2. Rather, the profile of the monomer conversion, and in particular its value at 175 min, made available in the computer simulations of the polymerization process of example 3 of D6, establish that the computer simulations do not accurately represent the polymerization performed in D6 in view of a large discrepancy in one of the key features of the process. Under these circumstances, it cannot be ascertained whether the pressure drop observed in the graphs of the computer simulation corresponds to that of the polymerization process of example 3 of D6. In view of this, it can only be concluded that the computer simulations provided by respondent 1 are not a reliable reproduction of the example and therefore are not suitable to show that the polymerization process of example 3 of D6 falls under claim 1 of auxiliary request 1.

5.4.6 That conclusion is not altered by the simulation of the polymerization process of example F of D6 provided by respondent 1 in D19 or of the process disclosed in the examples of the patent in suit provided in the letter dated 11 June 2018. Indeed, if the data shown in the simulations of example F and of the examples of the patent in suit (dosing of the initiator, constant pressure phase, monomer conversion and overall duration of the polymerization) can be seen as fairly corresponding to the data disclosed in D6 (Table VII), D21 (page 12) and the patent in suit (Table 1), that is not the case for the data shown for example 3 of D6 as discussed above under points 5.4.2 to 5.4.5. Hence, even if it were accepted that the simulations of example F and of the patent in suit could ultimately be seen as fair representations of the corresponding polymerizations as performed in example F of D6 and in the patent in suit, that would in any case not be valid for the simulations of example 3 of D6 as provided in D18 and repeated in the letter of 11 June 2018.

5.4.7 The Board concludes therefore that claim 1 of auxiliary request 1 is novel in view of D6.

6. As the respondents did not present any further objections against auxiliary request 1 there is no need for the Board to decide on any other issue.