Friday, September 23, 2016 T 1513/11: second non-medical use

The novelty and the inventiveness of a "use claim" was investigated in this appeal that lies from a decision of the Opposition Division. If a physical entity is already known, the use of this physical entity may be novel and inventive (second non-medical use). In this specific case the use of a specific concrete was claimed to oxidize polluting substances. It seems that the prior art does not disclose the claimed use. According to the Appellant (Opponent), the claim is not novel because of public prior use: the specific concrete was already applied to buildings and (after the priority date) one proved that this specific concrete also oxidized polluting substances. The Board was not convinced by the arguments of the Appellant. "Established case law" was used to decide in favor of the patent owner.