EP 2 283 332 B1 relates to a method of determination of a matching variant of a standard colour of a repair paint matching the colour of an object to be repaired in an automobile body repair shop.
Brief outline of the case
The opposition was rejected and the opponent appealed.
The board confirmed the rejection of the opposition.
The case is interesting in that the board had to deal with the combination of more than two documents of the prior art in order to solve a single OTP.
In the present case, E0 discloses colour examination from two different viewing angles. E00 discloses examination from only one angle. The embodiments of E15 use complex automated electric means for colour examination from multiple angles.
The opponent’s point of view
The skilled person would combine the teachings of the prior art discussed in the impugned patent in paragraphs [0002], [0005] and [0007] and therefore arrive at the subject-matter of claim 1.
The opponent argued that the OTP to be solved could be broken down into two independent partial problems.
The opponent argued that E15 taught investigating the texture of the paint and E00 taught to use three to six variant colours.
The proprietor’s point of view
The skilled person would not combine the teachings of the prior art discussed in the patent in paragraphs [0002], [0005] and [0007] and would not arrive at the claimed subject-matter without exercising inventive skills.
The proprietor argued that the two distinguishing features could not be separated and the OTP could not be split into two partial problems because the distinguishing features had a synergistic effect, namely that the method was both relatively precise and relatively simple.
The proprietor argued that the skilled person would not combine the teachings of the prior art discussed in the patent in paragraphs [0002], [0005] and [0007] because this was contrary to the problem to be solved, i.e. providing a method for determining the appropriate paint for complex colours that was both simple, i.e. without electric means, and suitable for complex colours such as effect colours.
The board’s decision
Both parties agreed that E0 was the closest prior art, because it discloses colour examination from two different viewing angles.
For the board, E0 fails to disclose
(a) determination of the best matching variant of the standard colour from 3 to 6 variant colours;
(b) the predetermined visual properties comprise at least one texture property.
The board agreed with the proprietor that it is not appropriate to formulate partial problems.
When solving a single OTP the skilled person cannot combine in the present context the teachings of three documents at a single stroke, but must first combine the teaching of E0 with the teaching of one of E15 and E00 and then, in a second step, combine the result of this combination with the teaching of the other one of E15 and E00.
The board held that, when the teachings of three documents are combined, this has to be done – in circumstances such as the present ones – step by step, i.e. in a first step, the teaching of another document is combined on the basis of the teaching or embodiment of the closest state of the art. In a second step, it must then be examined whether the skilled person would also combine the result of this combination with the teaching of the third document.
In doing so, the context of the initial situation as well as the complexity and specific technical context of each document or embodiment has to be taken into account.
In the present case none of the cited documents teaches both using three to six colour variants and evaluating the texture of the paint without any additional technical means except a swatch of variant colours.
E15 only teaches examining the texture of the colour in the context of calculating a repair paint with matching texture properties by utilizing a calculational texture model using the texture data of the paint modules and not in the simple context of E0, which requires no electric means.
E15 teaches the examination of texture only by using complex image processing software, while E0 and E00 teach the examination of colour only with the human eye from only one or two angles.
The board noted that the reference to E15 and its content in paragraph [0005] was added during examination proceedings before the EPO and was not part of the original application documents. Furthermore, E15 is described as disclosing “paint modules” and does not relate to the method described in paragraph [0007] at all.
From the context of the contested patent, it is clear that E00 and E0 refer to different evaluation methods.
The board cannot see how the skilled person would arrive at a combination of all claimed features by combining the teachings of E0, E00 and E15. Assuming a user of the method of E0 recognized that effect colours are harder to match accurately, they would also need to identify that this difficulty stems from variations in texture.
As there are no concrete indications pointing in this direction, it is doubtful that the skilled person would even consider this approach. Moreover, the method of E0 would require adaptation by introducing a second classification dimension for texture among the colour variants. E0, however, provides no teaching or suggestion in this regard.
If the skilled person were to opt for such a second dimension, this second dimension would comprise a multitude of additional texture properties. This multitude of aspects would lead the skilled person to provide a multitude of variant colours in order to do justice to this multitude of aspects.
However, for such a complex assessment, the skilled person would not consider that only three to six colour variants as suggested by the very simple method of E00 would be sufficient to determine the reference colour with sufficient precision.
Therefore, it is not apparent that the skilled person would consider it obvious that a method with an added texture dimension could still achieve accurate matching using only three to six variant colours.
Comments
The decision is interesting as it clarifies how to deal in a situation in which three prior art documents have to be combined to solve a single OTP.
It is not enough to allege that when combining three pieces of prior art, the solution of the OTP is obvious. First, two documents have to be combined, and from this combination of documents, it has to be assessed whether the skilled person would add the third one or not.
The situation is different when it comes to partial problems. There it is easier to combine different documents when dealing with each partial problem.
Comments
Leave a comment