EP 3 520 758 B1 relates to a multi-layer nonwoven material for absorbing and distributing liquids for hygiene articles.
The multi-layer nonwoven material has a top layer which in hygiene articles is facing towards the user and a bottom layer which in hygiene articles is attached facing the absorbent body, the bottom layer consisting of a nonwoven fabric, and the top layer consisting of a nonwoven fabric, wherein the top layer is exclusively thermally fused to the bottom.
Brief outline of the case
The opposition was rejected and the opponent appealed.
The board held that claim 1 as granted lacked IS, as the improvement meant to result from the differing features with the CPA was not proven for entire claimed scope.
The opponent’s point of view
The four embodiments shown in the patent in suit cover only one way of producing the thermal fusion. Furthermore, a water jet precursor is used in all embodiments. With regard to the thickness of the upper surface, the examples only covered a partial range. It was not proven that the claimed effect of improved liquid absorption with a given distribution properties could be achieved without these prerequisites.
The opponent argued that the claimed liquid absorption and distribution properties are not achieved over the entire scope of claim 1. In particular, the physical properties of the respective fibres used are not defined in claim 1. The type of fibres, whether they are hydrophilic or hydrophobic, as well as any treatment with finishers (avivage) have a great influence on the properties of the liquid absorption and distribution obtained.
The proprietor’s point of view
The OTP is to achieve an improved absorption capacity with comparable materials and a sufficient distribution effect.
Although the water jet method for pre-treatment of the underside described with regard to the embodiments was not claimed, claim 1 contained further limitations, for example the density of the underside was twice as high as that of the top side. The thickness of the top side plays a subordinate role with regard to the value achieved for the “strike-through”. The skilled person understands that he must choose a higher value depending on the application.
During OP before the board, the proprietor reformulated the OTP, namely to improve the liquid absorption capacity of comparable materials with a given distribution effect.
If further tests are deemed necessary by the board to prove that the claimed technical effect of improved liquid absorption is achieved with a given distribution effect over the entire claim width, these could be submitted subsequently. If necessary, a request would be made to adjourn the OP.
The board’s decision
The board held that the OTP formulated by the proprietor, improving the liquid absorption capacity with a given distribution effect was not the OTP because it was not shown that it was solved over the entire scope of claim 1.
The reformulation of the OTP during the OP, did not allow a different conclusion, absent any evidence that it has been solved across the entire scope of claim 1.
The examples cited in the patent were all produced under certain boundary conditions, which are not claimed. For example, all embodiments contain bicomponent fibres. The underside was produced using a water-jet needled precursor. All embodiment were treated by means of hot air bonding in a belt dryer. All fibres of the top side contain a hydrophilic avivage.
Claim 1 contains none of these limitations and thus covers embodiments in which differently treated fibres are used, the underside of which is not water jet treated and which are hot air melted in some other way or not at all.
A comparison with the only prior art example given in the patent or with one of the prior art examples given in D1 is therefore only possible with regard to the four specific embodiments of the patent in suit. What properties would result if other boundary conditions were selected cannot be determined on the basis of the information in the patent in suit.
In the present case, the proprietor relied on the technical effect allegedly caused by the distinguishing features that an improved absorption capacity is achieved with comparable materials, while at the same time the distribution effect is maintained. However, it is not apparent from the technical teaching of the patent in suit that this effect occurs over the entire breadth of the claim.
The board was not convinced by the proprietor’s argument that claim 1 is not limited to a water jet precursor, but to a different density of the bottom and top side. The water jet affects not only the density but also other properties. Last but not least, any existing avivages are washed away and the fibre direction is substantially changed.
There is no mention in the patent about the effect of the distinguishing features on the distribution capability. A parameter characterising the distribution capability, such as the rise height, was also not measured. The situation is different in D1.
Against this background, it can not only be regarded as not proven, but must be regarded as not encompassed by the technical teaching of the patent that in all constellations covered by claim 1 an improvement in the liquid absorption capacity would be achieved with a given distribution effect. Based on the information in the patent in suit, a skilled person would not expect this.
In such a case, according to G 2/21, a proprietor cannot rely on this effect to prove inventive step. In T 314/20, Reasons 6.14, for example, the reason for this restriction was correctly stated as being to prevent patents being granted for inventions which were not complete at the time of filing. This applies in particular to inventions where the existence of a technical effect or the generalisation to broader parameter ranges is speculative.
Therefore, even if the board had given the proprietor the opportunity to provide new comparative tests, these could not be used to prove the technical effect claimed by the proprietor in the context of the assessment of IS, in particular as far as they concern the distribution effect. The submission of the results of such tests would therefore have no relevant effect on the outcome of the proceedings.
Therefore, the board rejected the request to postpone the OP in order to provide additional comparative tests.
Comments
The claimed invention was actually so speculative that the proprietor’s proposal to demonstrate the effect with post-published evidence was rejected. The conditions set out in Headnote II of G 2/21,were not fulfilled.
In view of G 1/03, Reasons 2.5.2, last § and T 2001/12, catchword, as the effect was not claimed, the correct objection was indeed lack of IS, and not lack of sufficiency, as ampli argued by the opponent at the beginning of the opposition procedure.
T 314/20, was commented in the present blog.
On the procedure
The board decided a lack of IS over D1, a document of category A in the ESR.
It is interesting to note that G 1/24 was not mentioned in the present decision, although the board’s reference to the description are manifest.
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