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Novelty

Anticipation of ranges

3.51 In considering the novelty of claims which define the invention by parameters within numerical ranges, the same considerations as indicated in the previous section apply. Hence, a claimed range will lack novelty if a single example falling within the range, or at its end-points, is already known.

3.52 A claimed invention may also be characterized by the selection of a  narrower subrange of numerical values within a broader known range, where said narrower subrange has not been explicitly mentioned in the prior art. To establish the novelty of the sub-range, the selected sub-range should be narrow and sufficiently specific from the known broader range, illustrated by means of examples. The presence or absence of a particular technical effect within the sub-range appears to fall back upon considerations which should be taken into account in the assessment of inventive step, and hence, should not be consideered when assessing novelty (T 230/07 Colloidal binder/PAROC and T 1233/05 Refrigerant compositions/INEOS). The meaning of “narrow” and “sufficiently removed” has to be decided on a case-by case basis. If it is determined that the sub-range is novel, it must also meet the criteria for “selection inventions” set out in sub-section viii of Section I in Chapter 4.

3.53 Where the claimed range overlaps with a numerical range disclosed in a prior art document, the claimed range would clearly lack novelty if there is an explicit mention in the prior art of a specific example falling in the overlapping range or at its endpoints. In the absence of such a specific example, it must be considered whether the skilled person, in the light of the technical matters disclosed and taking into account the general knowledge in the field to be expected from him, would seriously contemplate applying the technical teaching of the prior art document in the region of overlap. If the answer is yes, then the claimed range would lack novelty. In T 26/85 Thickness of magnetic layers, the skilled person could not seriously contemplate working in the region of overlap, since the prior art surprisingly contained a reasoned statement clearly dissuading him from choosing the overlapping range, although said overlapping range was claimed in said prior art.