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(i) 100 to 5,000 ppm of at least one fast radical scavenger selected from the group consisting of alpha-tocopherol; beta-tocopherol; gamma-tocopherol; delta-tocopherol; 4,6-bis (octylthiomethyl) o-cresol and derivatives thereof; 4,4'-thiobis(2-methyl-6-t-butylphenol), 4,4'-thiobis(2-t-butyl-5-methylphenol); 2,2'-thiobis(6-t-butyl-4-methylphenol); 2,2'-thiobis 4-octyl phenol; 1,3,5-tris (4-tert-butyl-3-hydroxy-2,6-dimethylbenzyl)-l,3,5-triazine-2,4,6-(lH,3H,5H)-trione; 2,5-di-t-amylhydroquinone; a polymeric sterically hindered phenol with CAS number 36443-68-2; oxidized bis(hydrogenated tallow alkyl) amines; bis-(l-octyloxy-2,2,6,6-tetramethyl-4-piperidinyl) sebacate; 4,4'-bis(alpha,alpha-dimethylbenzyl) diphenylamine; N-phenyl-styrenated benzenamine; diphenylamine/acetone reaction product; p-(p-toluene-sulfonylamido)-diphenylamine; and mixtures thereof; and
"7. The composition of claim 3 wherein the fast radical scavenger comprises 4,6-bis(octylthiomethyl)o-cresol and the long term stabilizer comprises 2,2'-thiodiethylene bis[3(3,5-di-t-butyl-4-hydroxyphenyl)propionate]."
"10. The composition of claim 3 wherein the fast radical scavenger comprises 4,6-bis(octylthiomethyl)o-cresol and the long term stabilizer comprises at least one C13-C15 linear or branched alkyl ester of 3-(3',5'-di-t-butyl-4'-hydroxyphenyl) propionic acid."
"16. The composition of claim 3 wherein the fast radical scavenger comprises 4,6-bis(octylthiomethyl)o-cresol and the long term stabilizer comprises 4,4'-bis(alpha,alpha-dimethylbenzyl) diphenylamine."
(i) 100 to 5,000 ppm of at least one fast radical scavenger selected from the group consisting of alpha-tocopherol; [deleted: beta-tocopherol; gamma-tocopherol; ][deleted: delta-tocopherol][deleted: ;] 4,6-bis (octylthiomethyl) o-cresol and derivatives thereof; [deleted: 4,4'-thiobis(2-methyl-6-t-butylphenol), 4,4'-thiobis(2-t-butyl-5-methylphenol); 2,2'-thiobis(6-t-butyl-4-methylphenol); 2,2'-thiobis 4-octyl phenol; 1,3,5-tris (4-tert-butyl-3-hydroxy-2,6-dimethylbenzyl)-l,3,5-triazine-2,4,6-(lH,3H,5H)-trione; 2,5-di-t-amylhydroquinone; a polymeric sterically hindered phenol with CAS number 36443-68-2; oxidized bis(hydrogenated tallow alkyl) amines; bis-(l-octyloxy-2,2,6,6-tetramethyl-4-piperidinyl) sebacate; 4,4'-bis(alpha,alpha-dimethylbenzyl) diphenylamine; N-phenyl-styrenated benzenamine; diphenylamine/acetone reaction product; p-(p-toluene-sulfonylamido)-diphenylamine;] and mixtures thereof; and
IV. A notice of opposition to the patent was filed requesting revocation of the patent on the grounds of Article 100(a) EPC (both lack of novelty and lack of an inventive step) and Article 100(c) EPC.
VI. The patent proprietor (appellant) lodged an appeal against the above decision and requested in its statement of grounds of appeal that the decision of the opposition division be set aside and that the patent be maintained in amended form according to either the main request or any of auxiliary requests I-IV filed therewith. The appellant further requested to overturn the opposition division's decision not to allow an apportionment of costs.
"(i) 100 to 5,000 ppm of at least one fast radical scavenger [deleted: selected from the group consisting of ][deleted: alpha-tocopherol][deleted: ; beta-tocopherol; gamma-tocopherol; ][deleted: delta-tocopherol][deleted: ;] [deleted: 4,6-bis (octylthiomethyl) o-cresol and derivatives thereof; 4,4'-thiobis(2-methyl-6-t-butylphenol), 4,4'-thiobis(2-t-butyl-5-methylphenol); 2,2'-thiobis(6-t-butyl-4-methylphenol); 2,2'-thiobis 4-octyl phenol; 1,3,5-tris (4-tert-butyl-3-hydroxy-2,6-dimethylbenzyl)-l,3,5-triazine-2,4,6-(lH,3H,5H)-trione; 2,5-di-t-amylhydroquinone; a polymeric sterically hindered phenol with CAS number 36443-68-2; oxidized bis(hydrogenated tallow alkyl) amines; bis-(l-octyloxy-2,2,6,6-tetramethyl-4-piperidinyl) sebacate; 4,4'-bis(alpha,alpha-dimethylbenzyl) diphenylamine; N-phenyl-styrenated benzenamine; diphenylamine/acetone reaction product; p-(p-toluene-sulfonylamido)-diphenylamine; and mixtures thereof];
(i) 100 to 5,000 ppm of at least one fast radical scavenger selected from the group consisting of [deleted: alpha-tocopherol][deleted: ; beta-tocopherol; gamma-tocopherol; ][deleted: delta-tocopherol][deleted: ;] 4,6-bis (octylthiomethyl) o-cresol [deleted: and derivatives thereof; 4,4'-thiobis(2-methyl-6-t-butylphenol), 4,4'-thiobis(2-t-butyl-5-methylphenol); 2,2'-thiobis(6-t-butyl-4-methylphenol); 2,2'-thiobis 4-octyl phenol; 1,3,5-tris (4-tert-butyl-3-hydroxy-2,6-dimethylbenzyl)-l,3,5-triazine-2,4,6-(lH,3H,5H)-trione; 2,5-di-t-amylhydroquinone; a polymeric sterically hindered phenol with CAS number 36443-68-2; oxidized bis(hydrogenated tallow alkyl) amines; bis-(l-octyloxy-2,2,6,6-tetramethyl-4-piperidinyl) sebacate; 4,4'-bis(alpha,alpha-dimethylbenzyl) diphenylamine; N-phenyl-styrenated benzenamine; diphenylamine/acetone reaction product; p-(p-toluene-sulfonylamido)-diphenylamine; and mixtures thereof]; and
X. With letter of 18 November 2015 the Board was informed about a (further) change of representative for the appellant, whereby a general authorisation dated 28 May 2015 was simultaneously filed. That authorisation was in the name of the same representative as before, Mr. T.L. Brand, now working for a different firm, TL Brand & Co. Ltd.
XVIII. During the oral proceedings before the Board, which was held on 27 April 2017 in the absence of respondent 1, as announced, the appellant withdrew its request for apportionment of costs. Also, after the Board had announced its decision that auxiliary request V filed with letter of 16 January 2017 was not admitted to the proceedings, said request was withdrawn and a new auxiliary request V was submitted.
(i) 100 to 5,000 ppm of at least one fast radical scavenger consisting of [deleted: alpha-tocopherol][deleted: ; beta-tocopherol; gamma-tocopherol; ][deleted: delta-tocopherol][deleted: ;] 4,6-bis (octylthiomethyl) o-cresol [deleted: and derivatives thereof; 4,4'-thiobis(2-methyl-6-t-butylphenol), 4,4'-thiobis(2-t-butyl-5-methylphenol); 2,2'-thiobis(6-t-butyl-4-methylphenol); 2,2'-thiobis 4-octyl phenol; 1,3,5-tris (4-tert-butyl-3-hydroxy-2,6-dimethylbenzyl)-l,3,5-triazine-2,4,6-(lH,3H,5H)-trione; 2,5-di-t-amylhydroquinone; a polymeric sterically hindered phenol with CAS number 36443-68-2; oxidized bis(hydrogenated tallow alkyl) amines; bis-(l-octyloxy-2,2,6,6-tetramethyl-4-piperidinyl) sebacate; 4,4'-bis(alpha,alpha-dimethylbenzyl) diphenylamine; N-phenyl-styrenated benzenamine; diphenylamine/acetone reaction product; p-(p-toluene-sulfonylamido)-diphenylamine; and mixtures thereof]; and
(a) As explained in the statement of grounds of appeal, the wording of feature (c)(i) of either operative claim 1 or granted claim 1 effectively limited the total amount of fast radical scavengers present in the whole composition to 100 to 5000 ppm and excluded the presence of any other fast radical scavenger(s) not specified therein, whereby it was indicated in the application as filed which compounds were to be considered as fast radical scavengers. In particular, alpha-tocopherol could not be present in the composition according to claim 1.
(e) The amendment of feature (c)(ii) of claim 1 amounted to a single selection of five components from the longer list mentioned in feature (c)(ii) of original claim 5. In that respect, it was derivable from original claim 13 that the component ADK stab AO23**(TM) should have been comprised in the list of feature (c)(ii) of original claim 2. Several passages on pages 17 to 19 of the application as filed further supported the combination of additives as now specified in claim 1. The same combination of additives was further disclosed in original claims 7 to 18. Also, the examples of the application as filed pointed to the combination of additives defined according to features (c)(i) and (c)(ii) of operative claim 1. Therefore the requirements of Article 123(2) EPC were met. 2ff7e9595c
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