Combination from two lists/Nestlé, European Patent Office (EPO Board of Appeal), 31 July 2009

The selection of explicitly disclosed borderline values defining several (sub)ranges, in order to form a new (narrower) subrange, is not contestable under Article 123 (2) EPC when the ranges belong to the same list. However, the combination of an individual range from this list with another individual range from a second list that relates to a different feature, is not considered to be disclosed in the application as filed, unless there is a clear pointer to such a combination. Identifying the ranges in the two lists as ‘especially preferred’ is a clear indication for the intended parallel convergence of the ranges of the two lists, and such a combination does satisfy the requirements of Article 123 (2) EPC.

The full summary of this case has been published on Kluwer IP Law.