The Court held that a selection invention is inventive if the compound of the selection offers surprisingly advantageous or improved properties over the prior art compounds. These properties should already be plausible from the patent application as filed. Further, a selection invention would be obvious to the skilled person if they would assume a neutral ‘try and see’ approach on the basis of the prior art information, and no explicit chance of success needs to be present.
Case date: 06 February 2019
Case number: C/09/541351 / HA ZA 17-1092
Court: District Court of The Hague
A full summary of this case has been published on Kluwer IP Law.