Friday, December 16, 2016 T 66/12 - Simulation results and a sub-range

For people working in chemistry this may be just one of the so-many boards of appeal decisions on (sub) ranges. In the field of electro-mechanics I do not often see a decions about it.
In this opposition appeal the independent claim of the main request relates to a vehicle with a fuel cell. The independent claim comprises a sub range and the sub range seems to be the only difference with respect to the prior art. In the communication of the Board accompanying the summons to oral proceedings the Board concluded that the sub range is most probably an arbitrary specimen of the prior art and is, according to established case law, not novel. The final decision shows that the patent owner tried to prove that there is an effect in the claimed sub range. We can also read that the provided "simulations results" relate to current vehicles that may comprise technology that was not available at the date of filing of the current patent. Thus, there were no useful test results available at the date of filing to prove an effect of the sub range. This decision of the board shows what the consequence can be.