Main request (claims 1-11 filed on 8 June 2021)
1. Claim 1 of the main request as filed on 8 June 2021 read:
"1. Insecticidal aerosol, characterized in that it comprises:
0.1 - 0.5 % by weight of alpha cypermethrin,
0.1 - 0.3 % by weight of permethrin,
0.01 - 0.5 % by weight of tetramethrin,
0.1 - 3.0 % by weight of piperonyl butoxide,
0-0.5 % by weight of a fragrance,
one or more solvents,
one or more propellants, and
0.2 - 0.6 % by weight of a carbamate insecticide."
2. Article 56 EPC
2.1 The invention relates to an insecticidal aerosol comprising a mixture of pyrethroids, piperonyl butoxide and a carbamate insecticide. The aim of the invention is to provide an insecticidal aerosol which is more effective at combating insect pests than the compositions presently used (page 1 of the description).
2.2 Closest prior art
The appellant submitted during the oral proceedings that "ORO" was the closest prior art.
"ORO" is a commercial product and the control insecticide used in the examples of the application as filed. It comprises a mixture of pyrethroids (permethrin, tetramethrin and d-phenothrin) and piperonyl butoxide (bottom of page 7 of the application as filed).
Enclosure 6 further discloses that ORO is an insecticidal aerosol against "all insects".
ORO is an insecticidal aerosol for the control of insects. Since it is directed to the same aim as the claimed subject-matter, the board sees no reason to deviate from the selection of ORO as the closest prior art.
2.3 Distinguishing features
ORO comprises permethrin (0.25%), tetramethrin (0.20%), piperonyl butoxide (0.34%) and d-phenothrin (0.01%) (bottom of page 7 of the application as filed ). The composition of ORO is confirmed by enclosure 6 (page 2).
Thus, ORO has the following features falling under claim 1 of the main request:
(a) 0.25% of permethrin (falling within the range 0.1-0.3%, as required by claim 1 of the main request)
(b) 0.20% of tetramethrin (falling within the range 0.01-0.5%, as required by claim 1 of the main request)
(c) 0.34% of piperonyl butoxide (falling within the range 0.1-3.0%, as required by claim 1 of the main request)
The commercial product "ORO" does not comprise any alpha cypermethrin or carbamate insecticide, both required by claim 1 of the main request.
Consequently, the distinguishing features of claim 1 of the main request are:
(a) alpha cypermethrin in an amount of 0.1-0.5%
(b) a carbamate insecticide in an amount of 0.2-0.6%
The presence of d-phenothrin in ORO is not a distinguishing feature as claim 1 states "comprises" and therefore does not exclude further active ingredients.
2.4 Technical effects and objective technical problem
The appellant relied on the examples of the application showing an efficacy for the control of insects. In the written submissions, the appellant had also relied on the effect of absence of development of resistance against the insecticidal aerosol, but this alleged effect was not maintained during the oral proceedings.
2.4.1 The examples of the application as filed compare the efficacy of an insecticidal aerosol according to claim 1 of the main request ("ARAGON") and ORO ("control insecticide").
Table 1 shows that ARAGON according to claim 1 of the main request exhibits a "total" efficacy of 100% while ORO ("INSECTICIDE CONTROL" [sic]) has a "total" efficacy of 96.25% on the control of mosquitoes.
Table 2 shows for both insecticidal aerosols an efficacy of 100% for the control of flies.
Table 3 shows that ARAGON and ORO have a total efficacy of 74% and 26%, repectively, in the control of co*ckroaches.
2.4.2 The appellant submitted that the examples showed an improved efficacy of ARAGON, according to the invention, in the control of insects when compared to ORO.
2.4.3 The board does not agree for the following reasons.
The comparison done in the examples of the application does not show that the improvement is achieved by the distinguishing features.
The compositions compared do not comprise the same amount of active ingredients. ARAGON (the product according to claim 1 of the main request) comprises the following active ingredients: 0.18% of alpha cypermethrin, 0.20% of permethrin, 0.26% of tetramethrin and 0.42% of bendiocarb (see page 7 of the description). The composition, according to claim 1 of the main request, is supposed to further comprise 0.1 to 3.0% of piperonyl butoxide, as required by the claim. Thus, even without considering the implicit content of piperonyl butoxide, the amount of active ingredient in ARAGON is at least 1.06% (0.18 + 0.20 + 0.26 + 0.42).
On the other hand, ORO comprises only 0.80% of active ingredient (0.34% of piperonyl butoxide, 0.01% of d-phenothrin, 0.25% of permethrin and 0.20% of tetramethrin).
Therefore, the overall content of active ingredients in ARAGON (above 1.06%) is markedly higher than in ORO (0.80%).
Consequently, the results of the examples of the application as filed cannot show that the improvement observed in the control of insects has its origin in the distinguishing features of claim 1 of the main request (i.e. alpha cypermethrin and the carbamate insecticide) because the increased control of insects achieved by ARAGON in comparison to ORO can be expected merely from the higher amount of active ingredients present.
Therefore, it cannot be accepted that, with respect to ORO, the presence of the two additional pesticides as required by claim 1 provides an increased control of insects.
2.4.4 Thus, there is no technical effect associated with the distinguishing features. The objective technical problem is therefore the provision of an alternative insecticidal aerosol.
2.5 Obviousness
Document D4 relates to methods and compositions for combating pests. The compositions may be for an aerosol (column 2, lines 37-40). The compositions comprises, inter alia, bendiocarb (a carbamate insecticide) and a synthetic pyrethroid (column 1, lines 7-13). The synthetic pyrethroid may be cyano-3-phenoxybenzyl 3-(2,2-dichlorovinyl)-2,2-dimethylcyclopropanecarboxalate, which is the IUPAC name of alpha cypermethrin (column 1, lines 31-32). Thus, D4 discloses that a carbamate insecticide and alpha cypermethrin are combined to form suitable insecticides for aerosol.
The skilled person, faced with the above-mentioned technical problem, would have added to the composition of ORO any further insecticides suitable for an aerosol. The choice of carbamate insecticide and alpha cypermethrin would therefore have been obvious in view of the teaching of D4. The amounts of carbamate insecticide and alpha cypermethrin in claim 1 of the main request are not linked to any technical effect and thus amount to an arbitrary selection with no inventive merit.
2.6 The appellant argued that D4 was concerned with the control of insect eggs and did not focus on the same application as the subject-matter of claim 1 of the main request (aerosol). All the examples of D4 were directed to compositions sprayed on cotton or tobacco. There was thus no teaching in D4 to add the insecticides disclosed in D4 to the composition of ORO as the closest prior art to arrive at the subject-matter of claim 1 of the main request. The skilled person could have selected additional insecticides from D4, but they would not necessarily have done so.
The board is not convinced.
As set out above, D4 discloses an aerosol. However, even if the examples of D4 did not disclose an aerosol, the teaching of D4 is not limited to the examples and the preferred embodiments and thus is not limited to the treatment of plants. The fact that insecticidal aerosols are not disclosed in the examples of D4 would not have stopped the skilled person from selecting from this document additional insecticides for aerosol applications.
As far as the selection of additional insecticides is concerned, the board is of the view that the skilled person, in their effort to provide an alternative insecticidal aerosol, would have contemplated adding one or more additional insecticides suitable for an aerosol such as the insecticides disclosed in D4. The selection of this strategy and the particular insecticides from a group of equally obvious alternative solutions to the posed problem would have been arbitrary and does not involve an inventive step.
Therefore, the appellant's arguments must fail.
2.7 For these reasons, the subject-matter of claim 1 does not involve an inventive step in view of ORO as the closest prior art in combination with the teaching of D4 (Article 56 EPC).
3. Thus, the main request is not allowable.
Auxiliary request (claims 1-10 filed on 8 June 2021)
4. Claim 1 of the auxiliary request corresponds to the combination of claims 1 and 3 of the main request, i.e. the carbamate insecticide is restricted to bendiocarb.
5. Article 56 EPC
The amended feature of claim 1 of the auxiliary request (bendiocarb) is disclosed in D4 (2.5, supra).
Consequently, the reasons given for claim 1 of the main request apply equally to claim 1 of the auxiliary request.
The subject-matter of claim 1 of the auxiliary request therefore does not involve an inventive step either (Article 56 EPC).
6. For this reason, the auxiliary request is not allowable.
