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Date of decision
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04 November 98
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Case number
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T 0020/94
- 3.3.1
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Application number
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87201409.7
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Title of the application
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Tetrakis [3-(3,5-di-tert.buthyl-4-hydroxyphenyl)
propionyl-oxymethyl] methane with amorphous structure, process
for its preparation and its use as a stabilizer
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Applicant name
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Enichem Synthesis S.p.A.
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Opponent name
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Ciba Specialty Chemicals Holding Inc.
Chemische Werke Lowi GmbH & Co.
Himont Incorporated
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Keywords
Change from process claim to product claim (not allowable)
Amendment (yes) - additional feature not closely related with
the other features in an example
Novelty (yes) - onus of proof - unsupported objection
Inventive step (yes) - determination of the closest prior art
for process claim - unobvious solution
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Catchwords:
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1. Where the granted claims are solely process claims, a change
from a process claim for preparing a product to a
product-by-process claim by way of amendment extends the
protection conferred by the European patent to the same product
obtained by a process for its preparation different to that
defined in the granted process claim, contrary to the
requirement of Article 123(3) EPC (point 4.3 of the reasons).
2. Despite the fact that a product-by-process claim is
characterized by the process for its preparation, it
nevertheless belongs to the category of claim directed to a
physical entity and is a claim directed to the product per se.
Irrespective of whether the terms "directly obtained",
"obtained" or "obtainable" are used in the product-by-process
claim, it is still directed to the product per se and confers
absolute protection upon the product (point 4.4 of the reasons).
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