BESCHWERDEKAMMERN BOARDS OF APPEAL OF CHAMBRES DE RECOURS

DES EUROPÄISCHEN THE EUROPEAN PATENT DE L'OFFICE EUROPEEN

PATENTAMTS OFFICE DES BREVETS

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D E C I S I O N
of 19 January 2005

Case Number: T 0561/02 - 3.3.5

Application Number: 97103344.4

Publication Number: 0792849

IPC: C04B 14/28

Language of the proceedings: EN

Title of invention:
Limestone filled Portland cements

Patentee:
ITALCEMENTI S.p.A

Opponents:
Heidelberger Zement Aktiengesellschaft
Verein Deutscher Zementwerke e.V.

Headword:
Cement/ITALCEMENTI

Relevant legal provisions:

EPC Art. 83, 84, 100(b), 56

Keyword:
"Inventive step (yes)"

Decisions cited:
T 0042/98, G 0010/91

Catchword:
-

EPA Form 3030 06.03

 Europäisches European Office européen

b Patentamt

Beschwerdekammern
Patent Office

Boards of Appeal
des brevets

Chambres de recours

Case Number: T 0561/02 - 3.3.5

D E C I S I O N
of the Technical Board of Appeal 3.3.5
of 19 January 2005

Appellant: Verein Deutscher Zementwerke e.V.

(Opponent 02) Tannenstraße 2
D-40476 Düsseldorf (DE)

Representative: Ackmann, Günther, Dr.-Ing.

Ackmann, Menges & Demski
Patentanwälte
Tonhallenstraße 16
D-47051 Duisbrug (DE)

Respondent: ITALCEMENTI S.p.A.

(Proprietor of the patent) Via G. Camozzi, 124
I-24100 Bergamo (IT)

Representative: Passini, Angelo

Notarbartolo & Gervasi S.R.L.
Corso di Porta Vittoria, 9
I-20122 Milano (IT)

Party as of right: Heidelberger Zement Aktiengesellschaft

(Opponent 01) Berliner Straße 6
D-69120 Heidelberg (DE)

Representative: Zellentin, Wiger, Dipl.-Ing.

Patentanwälte
Zellentin & Partner
Rubenstraße 30
D-67061 Ludwigshafen (DE)

Decision under appeal: Interlocutory decision of the Opposition

Division of the European Patent Office posted
25 March 2002 concerning maintenance of
European patent No. 0792849 in amended form.

Composition of the Board:

Chairman: M. M. Eberhard
Members: H. Engl
S. U. Hoffmann
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Summary of Facts and Submissions

I. This appeal is from the interlocutory decision of the

opposition division according to which European patent
EP 0 792 849 B1, based on European application number
97 103 344.4, relating to limestone-filled Portland
cements, in the amended form meets the requirements of
the EPC. The decision was based on claims 1 - 7 filed
during oral proceedings before the opposition division.

Independent Claims 1 and 5 read as follows:

"1. Limestone filled Portland cement wherein the

fineness of limestone particles ranges from 6,000 to
10,000 Blaine and the fineness of clinker particles
ranges from 1600 to 2500 Blaine, having a limestone
content of 20% to 25% by wt. in respect of cement,
excluding gypsum and additives."

"5. Process for the preparation of limestone filled

Portland cement as claimed in claims 1 to 4, wherein
clinker and limestone are ground separately and then
homogenized."

The features in bold characters represent the

differences between the granted claims and those
amended during opposition procedure.

II. During the opposition procedure, the parties relied

inter alia on the following documents:

L1: S. Sprung, and E. Siebel, ZKG (Zement - Kalk -

Gips) International, Nr.1/1991, pages 1 - 11.

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L4: E. Siebel, S. Sprung, Beton 3/1991, pages 113 -

117.

E10, part III:

H.-G. Ellerbrock et al, ZKG 1 /1990,
pages 13 - 19.

A12: Forschungsbericht Nr. 10 (1990) of the Verein

Deutscher Zementwerke e.V., Düsseldorf, "Eignung
von Kalkstein als Zumahlstoff für die
Zementherstellung", dated 6 July 1994, pages 1 -
83 and Annexes thereto (pages 1 - 5 and Tables 2,
4 - 27 and 29)

A13: J. Baron and C. Douvre, World Cement April 1987,

pages 100 - 104.

A14: André Conrady, "Diplomarbeit" at the Rheinisch -

Westfälische Hochschule Aachen, Dec. 1994,
pages 1 - 99 and Annex, pages I - III

III. According to the contested decision, novelty was

undisputed. With respect to inventive step, document L1
was considered to represent the closest prior art.
Starting from said document, the object of the
invention was seen to provide a cost-effective
limestone-filled cement composition having
substantially the same strength performance as the
corresponding limestone - free Portland cement. The
problem was, in the opposition division's view, solved
in a non-obvious manner by a cement composition wherein
the fineness of the clinker and the limestone satisfied
the ranges as claimed in claim 1. Neither L1 nor any
other piece of prior art, in particular A14, provided

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an incentive to combine a coarse clinker component with

amounts of limestone as high as from 20% to 25%.

IV. With the statement of grounds of appeal, the appellant

(opponent 02) filed experimental tests in support of
its arguments concerning lack of inventive step. In a
further letter dated 29 July 2003, the appellant cited
a new document, E10, part I: K. Kuhlmann et al., "Korn-
größenverteilung und Eigenschaften von Zement" ZKG Int.,
Nr. 4 (1985), pages 169 - 178. With its submissions of
27 December 2004, the appellant requested that three
questions be referred to the Enlarged Board of Appeal.
Oral proceedings took place on 19 January 2005 at which
said request was not maintained.

The appellant requested that the decision of the

opposition division be set aside and the patent be
revoked. As an auxiliary request, the appellant
requested that the case be remitted to the department
of first instance, insofar as examination under
Article 83 EPC is admitted.

The respondent (proprietor of the patent) requested

that the appeal be dismissed.

The party as of right (opponent 01) did not present any

requests at the appeal stage.

V. The appellant argued that the amended claims maintained

by the opposition division did not meet the
requirements of Article 84 EPC. In particular, they
were not supported by the description in that the
claims literally excluded gypsum and additives, while

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these components were mandatory in the description and

the examples.

The appellant further argued that the patent lacked an

inventive step because the alleged increased strength
of the cement, after 2, 7 and 28 days, could not be
reproduced by the appellant as shown by its
experimental report.

In a later submission dated 29 July 2003, the appellant

also raised an objection under Article 83 EPC. He
argued that the patent did not disclose a particular
source for the clinker to be used in the invention. The
precise source of the clinker was however critical
according to the patentee's own submission.

Furthermore, the appellant pointed out that cements

having a narrow particle size distribution were known
from E10, part I, to exhibit higher strength. It could
therefore have been expected that the clinkers used in
the patent, in particular CLK3, which exhibit a rather
narrow particle size distribution, lead to high
strength products.

During oral proceedings the appellant argued lack of

inventive step based on the combined disclosures of
documents L1, L4 and A12; or, in the alternative, of
documents L1 and A13. In his submission, documents A12
and A13 would provide the skilled person with an
incentive towards an increase in limestone content
above 20%, because it is reported in A12 that this
would neither significantly affect the consistence nor
the chemical resistance of the cement composition and
A13 teaches that limestone fillers have a positive

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contribution to compressive strength. Strength after 28

days would also not be adversely influenced, as is
taught by L4.

VI. The respondent argued as follows: Document E10/part I,

filed for the first time during appeal procedure, did
not relate to limestone-filled cements and was thus not
relevant. This document should therefore be disregarded.

The respondent also rejected the appellant's arguments

under Article 83 EPC and denied that anything in the
patent specification or the respondent's written
submissions could suggest that the invention could be
worked only with a specific clinker. He disagreed with
the introduction of a fresh ground of opposition in the
appeal procedure, in accordance with G 10/91.

With respect to inventive step, the respondent pointed

to the "dilution effect" of limestone, reported in
several documents, in particular in A14 and A12.
According to these documents, increased amounts of
limestone would decrease the standard strength of the
cement, both after 7 and 28 days. Nothing in the prior
art would suggest the surprising maintenance or even
increase in standard strength obtained by adding
limestone having the required degree of fineness to
relatively coarse Portland clinker particles, in
accordance with the patent in suit. In A13 limestone
fillers were compared with inert fillers and the
conclusion drawn was not in contradiction to the
evidenced "dilution effect" of limestone.

The comparative tests carried out by the appellant were

rejected by the respondent as inconclusive, as they had

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been performed under borderline conditions as regards

particle size, and with grades of cement clinker
differing from those of the patent in suit.

Reasons for the Decision

1. The appeal is admissible.

2. Amendments

Amended claim 1 is based on original claims 1, 2 and 7.

The range of fineness of the clinker particles is taken
from the originally filed application documents,
page 4, lines 13 - 16 (paragraph [22] of EP 0 792 849
B1). The amended ranges and thus the scope of the
claims are narrower than in the claims as granted. The
requirements of Article 123(2) and (3) EPC are thus
met.

3. Objections under Article 84 EPC

The sole objection under Article 84 EPC maintained at

the oral proceedings by the appellant concerns the
amendment to claim 1 according to which the limestone
filled Portland cement has a "limestone content of 20%
to 25% by wt. in respect of cement, excluding gypsum
and additives" (emphasis added by the board). The
appellant read the exclusion of gypsum and additives as
relating to the Portland cement composition itself.
Noting that all of the examples of the patent in suit
did contain gypsum, because the clinker was premixed
with gypsum before grinding, the appellant concluded

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that there was a discrepancy between claims and

description, as well as lack of support of the claims.

In the opinion of the board it is clear that the

passage in question in claim 1 refers to the way of
calculating the amount of limestone. It is intended to
mean, and will be understood so by the skilled person,
that in calculating the amount of limestone, gypsum and
any additives should not be counted. In case of doubts
as to how to understand this exclusion, the description
of the patent in suit confirms this construction since
there is nothing in the patent in suit which would
suggest that the cement compositions must be free of
gypsum and additives. Therefore the appellant's
interpretation of claim 1 is clearly in contradiction
to the teaching of the patent in suit.

4. Objection under Article 83 EPC

4.1 This ground for opposition was invoked by the appellant

for the first time in his letter dated 29 July 2003.
The objection was not raised in the notice of
opposition or later on before the opposition division,
nor was it introduced by the opposition division on its
own motion. The appellant's argument that an objection
under Article 83 EPC had already been implicitly raised
in the notice of opposition of opponent 02 on page 6,
second paragraph, cannot be accepted for the following
reasons: The statement in question appears in the
context of the opponent's discussion of inventive step
and contains essentially an argument on clarity. It
raises the question whether the specific surface
according to Blaine is defined above the value of
approximately 6,000 Blaine, but does not question the

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possibility of producing gypsum particles having such

degree of fineness, thereby implying that parts of the
patent in suit could not be reproduced by the skilled
person. The objection under Article 83 EPC is thus to
be considered a fresh ground of opposition.

Following the decision of the Enlarged Board of Appeal

G 10/91 (item 18 of the reasons and point 3 of the
opinion) (OJ 1993, 420), fresh grounds of opposition
raised at the appeal stage can only be considered with
the approval of the patentee. The respondent did not
give such approval. However, the Enlarged Board of
Appeal also observed under item 19 of the reasons that
in case of amendments in the course of opposition or
appeal proceedings, "such amendments are to be fully
examined as to their compatibility with the
requirements of the EPC (e.g. with regard to the
provisions of Article 123(2) and (3) EPC)." According
to decision T 0042/98 of 9 January 2001 (Reasons, point
5.1.), "this concerns the situation where an objection
relating to a new ground of opposition was occasioned
by an amendment of the claims during the appeal
proceedings where the alleged problem causing the
objection is found for the first time." Likewise the
present board is of the opinion that if a new objection
to the sufficiency of disclosure (Article 100(b) EPC)
is raised against the amended claims and the objections
does not arise out of the amendments, i.e. it is not
occasioned by the amendment and could have been raised
also against the granted claims, then approval of the
patentee is needed in accordance with G 10/91. A
different construction of item 19 of decision G 10/91
would not be in agreement with the essence of this
decision since it would allow that a new ground of

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opposition, such as sufficiency of disclosure, be

considered without asking for the patentee's approval
even in case of minor amendments having no influence on
the sufficiency of disclosure. Therefore the question
arises whether or not in the present case the objection
raised by the appellant is occasioned by the amendments
of claim 1.

Amended claim 1 is based on a combination of the

features of claims 1, 2 and 7 as granted, with the
upper limit of the Blaine surface of the clinker being
restricted to 2,500 (paragraph [22]) of the patent in
suit). The appellant argued that the introduction of
these limitations into claim 1 would have changed the
technical substance of the claimed subject matter to
such an extent as to present a new technical teaching
which justified the raising of new objections. The
board cannot accept this argument for the following
reasons: A range of 1,600 - 2,800 for the Blaine
surface of the clinker particles is already stated in
dependent claim 2 as granted in combination with the
presently claimed range of 6,000 - 10,000 for the
fineness of the limestone particles. Furthermore the
amount of limestone introduced into claim 1 is already
stated in granted claim 7 which makes reference not
only to claim 1 but also to claim 2 as granted.
Likewise no objection under Article 100(b) EPC was
raised by the appellant against granted claims 1, 2 and
7, in the notice of opposition or during opposition
proceedings. It is further observed that the preferred
range of 1,600 to 2,500 covers a major part of the
range 1,600 to 2,800 disclosed in granted claim 2 in
combination with the presently claimed limestone
fineness range and that the appellant's arguments in

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support of the alleged insufficiency of disclosure of

the claimed invention in fact apply analogously to
granted claims 2 and 7, i.e. they do not result from
the limitation to 2,500. It is therefore concluded that
the amendments did not occasion the new ground of
opposition under Article 83 EPC which is thus, in the
absence of the patentee's approval, not to be
considered by the board.

4.2 Irrespective of the above, the board also considers

that, although the appellant formally argued under
Article 83 EPC, most of the factual arguments presented
by him are in their essence arguments concerning lack
of inventive step (Article 56 EPC), as this can be
inferred from section 6 below. As such, they will be
considered in section 6 below.

5. Novelty

The subject matter of claim 1 is novel over the

disclosure of the cited documents. As novelty was not
disputed by the parties, further considerations in this
respect are not necessary.

6. Inventive step

6.1 In the unanimous opinion of the parties and the board,

the closest prior art is represented by document L1.
Said document reports on investigations on limestone
filled Portland cement (PKZ), at filler contents of 15%
and 25% by wt. (see section 4). The Blaine fineness of
the added limestone was varied between 1,000 and 10,000
cm2/g Blaine surface (see section 4.3.); however, the
bulk of the limestone samples had a fineness between

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4,930 and 6,970 Blaine (see Table 3). The clinkers had
a specific fineness of between 2,700 (PZ 35 F-I) and
3,370 (PZ 45 F-A) Blaine (see Table 4). However, L1
does not disclose results on the relatively coarse
cement PZ 35 F-I in combination with at least 20% of
limestone having a fineness above 6,000 Blaine. PKZ
obtained from various grades of PZ 35 F-A are disclosed
in Table 4 as having a fineness of from 2,450 to 3,370
Blaine, and on average approximately 3,000 Blaine (see
the sentence bridging pages 6 and 7. Figure 8 shows a
decrease in standard compressive strength values upon
addition of limestone relative to PZ 35 F-A; however,
it is not stated which of the PZ 35 F-A cements
reported in said Table 4 have been used. Addition of
limestone of 6,970 Blaine (K 0) causes a decrease in
compressive strength after 28 days (28d) of about 4% at
15 wt-% limestone addition and of about 23% at 25%
addition (see section 4.2., Table 3 and Figure 8). The
influence of the fineness of the limestone on 28 days
strength is depicted in Figure 9 of L1 and turns out
not to be marked over the full range of from 1,000 to
10,000 Blaine. The authors of L1 conclude that the
generally observed loss in compressive strength caused
by the addition of limestone to Portland cement (the
so-called "dilution effect") can be partly compensated
by a finer ground cement (see page 9, left hand column,
first paragraph; page 10, left hand column, first
paragraph; and Summary).

The subject matter of the patent in suit differs from

this prior art in that high amounts of 20 to 25% of a
fine limestone (6,000 to 10,000 Blaine) are combined
with a coarser cement clinker (1,600 to 2,500 Blaine).

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6.2 Starting from L1, the objective problem of the patent

in suit is to provide a limestone filled Portland
cement having a mechanical strength which is not
substantially decreased with respect to that of the
Portland cement without filler.

During oral proceedings before the board the appellant

has formulated a broader technical problem which
consists in providing Portland cement compositions
whose properties do not deteriorate upon admixture of
20 - 25% limestone. He also criticized the formulation
of the technical problem in the patent in suit which in
his view contained inadmissible pointers to the
solution.

The board does not share this opinion. The problem

appearing in the patent in suit, paragraph 18,
correctly states that under the conditions of the claim
it has been found that the mechanical properties of the
mixed cement are substantially the same as and
sometimes even better than those of the Portland cement
without filler. From the examples in the patent in suit
(Table 3 and 4) it is apparent that the mechanical
properties under consideration are the compressive
strength after 2, 7 and 28 days, and the flow. The
above formulation of the technical problem, as given by
the board and the patentee, is therefore in line with
the facts derived from the closest prior art document
L1 and with the wording in the patent itself. The board
is also convinced that there are no pointers towards
the claimed solution in the formulation of the problem,
given that it contains no mention of fineness of
clinker or limestone and limestone content.

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6.3 The board is also satisfied that the above defined

technical problem is actually solved by the features of
the independent claims, for the following reasons:

Tables 3 and 4 of the patent in suit provide data on

clinkers CLK1, CLK3, CLK4 and CLK5 in accordance with
the invention. Upon addition of 20% and 25% limestone,
respectively, the standard mortar compressive strength
(CS) after 28 days in N/mm2 remains substantially the
same for CLK1 and CLK3 (from 45.4 to 45.2 and from 51.2
to 51.4, respectively) at 20% addition levels. CS drops
by approx. 10% for CLK3 when 25% limestone is added,
while it remains constant or even improves slightly for
CLK1 (46.3). Clinkers CLK4 and CLK5 exhibit a slight
increase in compressive strength after 28 days, as
evidenced by experimental data from Table 4. It was
ascertained during opposition proceedings and accepted
by the opponents that the figures of Table 4 (example
3) were obtained at a limestone addition level of 20%,
although this value is not immediately derivable from
the specification (see interlocutory decision, page 6).
It follows that the experimental evidence in the patent
in suit supports the patentee's claim that the
technical problem is solved, a 10% decrease in CS in
one single example (CLK3 at the highest level of
limestone addition) still being acceptable and
compatible with the formulation of the problem.
Moreover, it should also be taken into account that the
invention provides mortars having improved early
compressive strength (i.e., measured after 2 and 7
days), an effect which is technically relevant as it
allows a quicker recycling of the moulds in concrete
fabrication. This has not been contested by the
appellant.

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The experimental evidence submitted by the appellant as

an Annex to the letter dated 1 August 2002 is unsuited
to reverse the above finding. While it is accepted that
the 28d CS values reported by the appellant for PKZ1.1,
and PKZ1.2 are lower that the CS values in the opposed
patent, this might be due to the fact that different
sources of clinkers have been used, as indicated by the
respondent. It cannot be inferred therefrom that the
28d CS values of samples PKZ1.1 and PKZ1.2 would be
substantially lower than those of the corresponding
Portland cement without filler. It is significant that
the experiments carried out by the appellant do not
contain a reference sample consisting of the clinker
used, without any addition of limestone. Therefore, a
comparison of CS before and after limestone addition is
impossible. It should be noted that the opposed patent
does not aim at providing limestone filled Portland
cements which are superior in absolute terms, but only
which have strength performance not substantially
decreased with respect to the unfilled cement. It
follows therefrom that the appellant's experimental
tests also do not show that a particular source of
clinker is necessary to solve the technical problem or
achieve the desired result.

6.4 It remains to be analyzed whether the claimed solution

is obvious in the light of the cited prior art.

6.4.1 The appellant has referred in his oral submissions to

documents L1, L4 and A12. The public availability of
A12 was disputed by the respondent. In fact, A12
carries the date of 6 July 1994, together with the
stamp of the library of the Verein Deutscher

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Zementwerke. The respondent questioned the free

admission of the public to said library. This question
need not, however, be decided, because even assuming to
the appellant's advantage that A12 was available to the
public, the subject matter of claim 1 would still be
considered to involve an inventive step for the reasons
given hereinafter.

Document L1, which has been analyzed in some detail

under point 6.1. above, discloses limestones as
additives having a fineness of from 1,000 to 10,000
Blaine. The lowest value of Portland cement fineness
reported in L1 (and L4) is PZ35 F-I having a surface of
2,450 Blaine. The claimed ranges are thus not outside
the prior art's scope. The appellant referred to L4
(page 114, point 4.1.1.) to show that addition of up to
25% of limestone has been under consideration by the
skilled person. The use of fine limestone was, in the
appellant's view, suggested by L4 (page 116, left hand
column, last sentence), stating that an increase of
limestone fineness of from 3000 to 8000 cm2/g generally
brings about a slight increase in 7d and 28d
compressive strength. The appellant argued that there
was no prejudice against such high amounts of
limestone: A12 (page 74, point 7.1) reports that the
consistence of PKZ was not affected by going from 15%
to 25% limestone. A12 (page 9, second paragraph) states
that the chemical resistance and the carbonation
behaviour of PKZ containing up to 30% of limestone was
not different from unfilled PZ, provided they have the
same 28d strength. The appellant stressed that document
A12 incorporated the disclosure of document L4 by way
of reference (see page 117, reference [2]).

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The board cannot follow this argumentation. The

statement in L4 that finer limestone (3,000 to 8,000
cm2/g) generally brings about a slight increase in 7d
and 28d compressive strength, is true for a (constant)
limestone content of 15%, which is considerably below
the claimed range. At higher levels of above 20%, loss
of strength is reported which cannot be compensated for
(page 116, left hand column, penultimate paragraph).
Most significantly, however, there is no apparent
recommendation that such compensation, if at all
possible, could be effected by choosing coarser
clinker. Rather to the contrary, both L1 and L4 clearly
advocate the use of finer clinker, the more limestone
is added.

Other arguments relating to chemical resistance and

consistence are not relevant, as they do not relate to
the technical problem of compressive strength. From
A12, a statement was cited that PKZ was known to
exhibit the same chemical resistance and carbonisation
behaviour as Portland cement, at filler levels of up to
30%, provided they have the same 28d strength (page 9,
middle paragraph). At page 74 it is reported that the
consistence of the concrete is not changed by
increasing limestone content from 15 to 25%. These
arguments, however, are unrelated to the development of
compressive strength of limestone filled Portland
cement. In addition, it is observed that A12, like L1
and L4, teaches that the decrease in strength caused by
limestone addition can in general be compensated for by
using finer clinker (see page 74, bottom, and page 50,
third paragraph). This goes directly against the
teaching of the patent in suit.

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6.4.2 In another line of argument, the appellant combined the

disclosures of L1 and A13 to demonstrate obviousness.
Still regarding L1 as closest prior art, the appellant
argued that A13 suggested the concept of compensating
any loss in strength, caused by limestone addition, by
a finer clinker. He referred to the Figure in A13,
page 102, left hand column, showing compressive
strength (CS) in relationship to clinker fineness, from
which it could have been inferred that even coarser
clinker can lead to CS in the order of the 45 - 50 MPa,
i.e., in the range of the patent in suit. Table 3 of
A13 (page 102, right hand column) compares CS upon
addition of limestone fillers and inert fillers. It is
shown that for 20% limestone the strength ratio is
approximately 1.1, that is, compared with an inert
filler, limestone increases CS by about 10%. Finally,
the Figure at A13, page 103, left hand column, exhibits
28d CS vs. clinker fineness, for limestone filler
contents up to 30% and for two different clinker grades.
It is seen that the decrease in CS is less pronounced
for clinker H having the lowest Blaine surface (2,800
Blaine), compared with finer clinkers. This, in
combination with the considerable energy saving
reported in A13 (page 103, right hand column, paragraph
four) would provide yet another incentive for the
skilled person to combine limestone with clinker of
moderate to low degree of fineness.

However, the board considers that these arguments,

based on A13, are not convincing either, for the
following reasons. The Figure at page 102 (right hand
column, top) clearly shows a marked increase in
strength for the finer clinkers; thus, while it is true
that satisfactory strength could be obtained from

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undiluted coarse cement clinkers, the skilled person

would try to compensate for the dilution loss resulting
from limestone addition using the finer, high strength
cement clinkers. Only in comparison with completely
inert filler can limestone increase the strength, as
shown in Table 3 of A13; compared with pure cement,
strength is always reduced. This finding is not in
contradiction to the opinion prevailing in the art that
limestone has a diluting effect. Finally, at page 103
of A13, left hand column, the paragraph between the
Figures clearly states that "the more limestone added,
the higher the clinker fineness should be", which is
the opposite of what the appellant tries to read into
the Figure above. As a matter of fact, the Figure shows
that strength drops sharply for all clinker finenesses.
Moreover, the coarsest clinker under investigation is
2,800 Blaine, well above the claimed limit of 2,500
Blaine.

6.4.3 Further arguments were advanced by the appellant based

on document E10/part I, filed with letter of
29 July 2003. The appellant argued that the compressive
strength of PKZ is, for a given limestone content, only
dependent upon the particle size distribution of the
clinker (page 169, Summary). E10/part I also reports
that cements having the same specific surface, but
narrower particle size distribution exhibit higher CS
(page 170). Therefore, it would not be surprising that
the clinkers used in the patent in suit, especially
CLK3, which possess a particularly narrow particle size
distribution, yield the high strength values as shown
in the examples. It should be noted that CLK3 was
obtained by sifting and discarding the fines below 10
µm. It was furthermore alleged to be common general

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knowledge that the particle size distribution broadens

with increasing fineness (letter of 29 July 2003,
page 6).

The latter argument is, in the board's view, not in

line with the factual disclosure of the available prior
art. E10/part III, point 2, third paragraph, teaches
the contrary. Document A14, top of page 87, states that
the parameter n ("Steigungsmaß") in the RRSB diagram,
which characterizes the shape of the particle size
distribution, is to a great extent independent of the
fineness of grinding. Co-grinding of limestone and
clinker, according to other authors, leads to
variations of n for both components. In any event, if
the size distribution is affected by grinding, then in
the opposite direction of what the appellant alleges.

The appellant has also failed otherwise to demonstrate

that the particle size distribution was an essential
feature of the claimed invention. In fact, the patent
in suit contains experimental particle size
distributions for the two clinkers CLK1 and CLK3, the
particle size distribution for CLK3 being particularly
narrow, and narrower than for CLK1. In the experiments,
both clinkers show the desired effect of substantial
maintenance of compressive strength. With the cement
having the broader particle size distribution (CLK1)
the 28d CS is even slightly improved with respect to
the cement without limestone. In the absence of
evidence to the contrary, it is credible in view of
these results that the effect of substantial
maintenance of compressive strength is achievable even
with a broader particle size distribution of the
clinker.

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6.5 It results from the above that it was not obvious

having regard to the cited art to compensate for the
expected loss in compressive strength resulting from
limestone additions of 20 to 25% by choosing a coarse
clinker in the claimed range, in order to solve the
problem posed. The same conclusion can be drawn with
respect to the other documents cited in the opposition
proceedings.

The subject matter of claim 1 is therefore based on an

inventive step. The same applies to process claim 5
which refers back to claim 1. The dependent claims
recite preferred embodiments of claims 1 and 5,
respectively, and are likewise allowable.

7. A request to remit the case to the department of first

instance for examination under Article 83 EPC was made
subject to the condition that the board would allow the
introduction of this new ground of opposition in the
appeal proceedings. Since the board decided not to
admit this new ground into the proceedings, the request
for remittal is not to be considered.

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Order

For these reasons it is decided that:

The appeal is dismissed.

The Registrar: The Chairman:

A. Wallrodt M. Eberhard

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