EP 3 711 729 B1 relates to absorbent hygiene products.
Claim 1 as granted lacked N over a Public Prior Use.
The patent was maintained according to AR1.
The proprietor and both opponents appealed.
The board held that claim 1 as granted infringed Art 123(2).
In this blog we will deal with added matter.
The word “good” in relation to the contact between the absorbent core and the acquisition distribution layer (ADL) had been deleted in AR1.
The proprietor’s point of view
The omission of the word “good” in relation to the contact between the absorbent core and the acquisition distribution layer (ADL), was lacking any clear technical implication or meaning. The word “good” could thus be omitted without violating added matter requirements. This was the finding in G1/93.
A “good” contact did not clearly equate to any type or quality of contact. As a closed, layered structure, the ADL being positioned between the top sheet and the absorbent core, which was under pressure when worn, it was technically reasonable for contact to unambiguously occur between the ADL and the absorbent core.
The skilled person would also understand from the original description that it disclosed a range of contact from “close proximity” to “good contact”, all degrees of contact therebetween thus also being disclosed.
It was clear that point contact or intermittent contact would also achieve the liquid distribution function of the ADL such that the qualifier “good” would be seen by the skilled person as being implicit in the contact recited in claim 1.
“Contact” alone, without the qualifier “good”, was also directly and unambiguously derivable from the application as filed as in other parts of the description simply disclosed “contact” between the ADL and the absorbent core.
The opponent’s point of view
In the original description only “good contact” between the ADL and the absorbent core was disclosed. Small areas of contact between the ADL and absorbent core were now covered by claim 1 which the skilled person would not see as being “good” contact. Only two different positions, not a range of possibilities of different contacts between two extremes was originally disclosed.
The board’s decision
The board saw the omission of the qualifier “good” to lack a direct and unambiguous basis in the application as filed.
The board found the word “good” in the expression “good contact” to be technically relevant in the present context. For a skilled person, a good contact, at least in the technical field of absorbent articles, would imply face-to-face contact over a large area between two elements of the article.
Conversely, if two elements are merely “in contact” with one another, at one extreme the expression encompasses merely single point contact over a small area. This latter condition of minimal contact between two elements would not be considered by the skilled person as embodying “good” contact between the elements.
Despite the term “good” being somewhat imprecise, in the context in which it is used in the description it would be understood nonetheless to indicate a certain kind, amount and/or quality of contact.
This type of contact is, however, left completely open through the omission of the term from claim 1. The proprietor’s argument, with reference to G1/93, that the term “good” could be omitted from claim 1 due to it lacking a technical meaning is thus not accepted.
The proprietor’s further contention that “good” contact did not clearly equate to any type or quality of contact was, at least in the present context, not accepted.
The purpose of an ADL in absorbent articles is to remove liquid deposited on a top sheet and ensure its distribution within itself, but also to ensure swift transfer of the liquid to the absorbent retention part of the core of the article.
In this context, a “good” contact between the ADL and the absorbent core must be contact which efficiently promotes the transfer of liquid from the ADL to the absorbent core such as, for example, by providing a large face-to-face contact area.
Such a contact for promoting transfer of liquid is also suggested in the original disclosure by way of the ADL and the absorbent core being disclosed to be “in close proximity or even in good contact”, the “good contact” thus being evidently superior to mere “close proximity”. Consequently, at least a contact was implied through the expression “good contact”, which the word “contact” alone fails to achieve.
Comments
It is manifest that the term “good” is a relative term which could a priori be considered unclear. How good can good be?
In the present case, the contact between the ADL and the absorbent core has to be “good” in order to promote swift transfer of liquids. Even ambiguous, the term “good” could not be deleted.
In T 241/13, Reasons 1.3.1, it was held that even if an ambiguous feature may be interpreted in a particular way, this is not sufficient to ensure the compliance of an amendment based on that interpretation with Art 100(c).
In the present case, the ambiguous feature could not
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