Friday, 25 December 2020

T 1350/09 - Different ornaments is inventive, merely unique sensorial signals are not

Using different ornaments can be inventive


Merry  Christmas from the DeltaPatents blogging team.  This decision shows that adding pretty ornament can be inventive even if providing a unique sensorial signal is not.

Claim 1 of the main requests in this opposition was:

1. A display pack comprising a see-through container which contains a plurality of unit-doses of a detergent product in a multiplicity of sensorially distinctive groups, and wherein the groups are distinctive in terms of colour, shape, size, pattern or ornament, or wherein the groups are distinctive in terms of providing a unique sensorial signal such as smell, sound, feel, etc."

The first auxiliary request struck the  final wherein clause : " or wherein the groups are distinctive in terms of providing a unique sensorial signal such as smell, sound, feel, etc." That made the difference.


Reasons for the decision

(...)

Main Request

3. Interpretation of claims 1 and 5.

3.1 According to the jurisprudence of the Boards (see the Case Law of the BoA, 6th Ed., 2010, II.B.5.1), the skilled person, when considering a claim, should rule out interpretations which are illogical or which do not make technical sense. He should try, with synthetical propensity, i.e. building up rather than tearing down, to arrive at an interpretation of the claim which is technically sensible and takes into account the whole disclosure of the patent.

3.2 The Proprietor has convincingly argued that it is unreasonable to interpret literally the wording of claim 1 of the Main Request (see above Section VII of the Facts and Submissions), i.e. as if this claim could encompass the possibility apparently deprived of any technical relevance, of packaging the same detergent unit-dose in sensorially different pouches. The Board finds that this argument is not only in accordance with a logical and technically sensible interpretation of claim 1 per se, but is also supported by the disclosure of the patent-in-suit as a whole and, in particular, by the explicit teaching therein that the sensorial differences among the pouches have the function to render easy for the final consumer to identify the pouch (see the patent-in-suit, the passage of [0013] at lines 34 to 35, reading "the different colour pouches are very easy to identify from the exterior", emphasis added by the Board). In the opinion of the Board, this teaching only makes technical sense if different detergent unit-doses (i.e. unit-doses differing in the chemical compositions and/or in the overall amount of the detergent product contained therein) are present in the pouches that are sensorially different.

On the contrary, no passage of the patent-in-suit supports the Opponent's allegation that the invention was simply directed to packages with improved aesthetics only. Indeed, in paragraph [0008] "excellent aesthetics" is not mentioned per se, but rather as an aspect of the need allegedly existing in the prior art "for multi-compartment pouches with improved strength, handling and dissolution characteristics as well as excellent aesthetics" (emphasis added by the Board).

The same reasoning applies to claim 5.

Therefore, the Board concludes that claims 1 and 5 are interpreted by the skilled person as necessarily implying the presence of different detergent unit-doses in the sensorially different pouches.

4. Inventive step: claim 1

4.1 In view of the above-reported interpretation, the Board considers the subject-matter of this claim to be a display pack that comprises a see-through container which holds a plurality of sensorially different multi-compartment pouches containing different detergent unit-doses.

4.2 Paragraph [0029] of the patent-in-suit indicates that the present invention aims at rendering available a detergent pack for the storage, distribution and display of combinations of detergent unit-dose pouches with "improved display attributes and which makes very easy for the consumer to evaluate the amount of pouches in the pack". The Board considers convincing the Proprietor's argument, undisputed by the Opponent, that the skilled person would consider inevitably implied by the expression "improved display attributes", inter alia, the technical problem of rendering easy for the consumer to identify - and, thus, to choose - the unit-dose more appropriate for the specific washload.

4.3 The Board notes that document (10) (see the Figures and claim 1) refers explicitly to laundry detergent products contained in multi-compartment pouches.

Moreover, this document also explicitly mentions the possibility of simultaneously offering combinations of different detergent unit-doses to the consumer, so that this latter can choose the appropriate unit-dose and, thus, obtain a better washing process.

Indeed, and contrary to the Proprietor's submissions, document (10) also teaches:

i) that the content of each pouch (i.e. also of each of the multi-compartment pouches depicted in the Figures of this citation) may be a "single dose or a submultiple dose" so as to allow the consumer greater flexibility in varying the amount used, depending one the size and degree of soiling of the washload (see page 12, lines 3 to 26);

and

ii) the possibility of having "a single or sub-multiple dose of detergent and bleaching composition mixture in one set of sachets, and further bleaching composition contained in another separate set of sachets. That arrangement would enable the consumer to use a lower or higher amount of bleach depending on the level and nature of the soiling of the washload"(see at page 12, lines 53 to 56).

Hence, the Board finds it reasonable to assess inventive step starting from the teaching in this prior art citation as to the possibility of simultaneously offering to the consumer a combination of different pouches containing different detergent unit-doses, with the explicit scope of rendering possible for the consumer to adapt the washing conditions to the actually existing needs. Hereinafter, this is indicated as the relevant teaching of document (10).

4.4 The Board notes that this relevant teaching also necessarily implies that the pouches of the different groups must be sensorially different.

Indeed, to select the most appropriate pouch necessarily requires the different pouches to be identifiable and, thus, to appear different in some way to the consumer (who, as correctly observed by the Proprietor, cannot normally be expected to be able to determine the chemical composition or the overall amount of the detergent product forming the unit-dose).

Since claim 1 of the Main Request does not set any limit as to the nature of the sensorial signals rendering the pouches' groups distinguishable from each other (see in claim 1 the definition of the sensorial distinction "wherein the groups are distinctive in terms of providing a unique sensorial signal such as smell, sound, feel, etc.", emphasis added by the Board), this claim covers all possibly conceivable ways of creating such sensorial distinctions (inclusive, for instance, the printing of e.g. a name, letter or a number on the pouches or the application thereon of a different label, etc.). Thus, even in the absence of any specific disclosure in document (10) of the measures necessarily implied therein in order to render identifiable the pouches containing different detergent products, it is apparent that any possible way of carrying out such teaching of the prior art would also necessarily result in pouches that are sensorially different as required by present claim 1.

In addition, the Board concurs with the Opponent, that claim 1 of the Main Request does not necessarily imply that the distinguishing visible signals can be identified e.g. from the exterior of the see-through container (see e.g. in claim 1 of the Main Request "smell, sound, feel", but also the fact the wording of the claim does not exclude distinguishing differences in e.g. "pattern" or "shape" that may become apparent only upon close observation of e.g. the unfolded pouch in isolation). Thus, it is also not credibly solved over the whole scope of the claim the further technical problem presented by the Proprietor as implied in paragraph [0029] of the patent-in-suit (and also possibly implicitly reflected in the passage of paragraph [0013] referred to at point 3.2 above) that, due to the use of the see-through container, the sensorial distinctions could allow the consumer to evaluate from the exterior of the container the remaining amount for each kind of unit-dose pouches.

Accordingly, the Board finds it not credible that the claimed subject-matter renders more easy than the prior art to identify and/or to evaluate the remaining amount of the different detergent unit-doses.

Hence, the Board comes to the conclusion that the sole technical problem credibly solved vis-à-vis the closest prior art by the subject-matter of claim 1 of the Main Request over the whole claimed range is just that (also reflected in paragraph [0029] of the patent-in-suit) of simultaneously transporting and displaying a combination of different detergent unit-doses, thereby rendering easy for the consumer to evaluate the overall amount of unit-doses available.

4.5 The Board finds, however, that the subject-matter of claim 1 represents a solution to this technical problem that is obvious in view of very same teaching of document (10) and of the common general knowledge in the field of packaging.

In the opinion of the Board, the skilled person aiming at solving the posed technical problem and starting from the relevant teaching in document (10), would necessarily be also aware of the packaging conventionally used for detergent products.

The Opponent has provided ample evidence of the use in the prior art of see-through containers for transporting and displaying detergent products in general (see e.g. in Annex 2 enclosed to the Opponent's letter of 23 June 2009, inter alia, the photo of a transparent package of differently coloured soap bars). This has not been disputed by the Proprietor.

Hence, it was obvious for the skilled person to solve the posed problem by packing in transparent containers the combination of (necessarily) sensorially different pouches containing different detergent unit-doses that resulted from any realistic reduction into practice of the relevant teaching of document (10).

To then arrive at the claimed subject-matter the skilled person only needs to take into consideration the possibility of carrying out the relevant teaching of document (10) by using pouches that are multi-compartment (rather than being constituted by a single compartment). This amounts to an arbitrary selection, deprived of inventive merits, among the two alternatives equally suggested in the citation of departure. Indeed, the possibility of using multi-compartment pouches is already disclosed in document (10), which explicitly suggests it not only for segregating possibly incompatible components of the same detergent product, but also for the purpose of dividing in sub-doses the detergent mixture (see document (10) page 12, lines 13 to 23).

4.6 For these reasons the Board comes to the conclusion that the subject-matter of claim 1 of the Main Request is obvious in view of the combination of document (10) with the common general knowledge in the field of detergent packaging. Hence, this request is found to contravene Article 56 EPC 1973 and, thus, must be refused.

First Auxiliary Request

5. Since this request only differs from the Main Request for the deletion from claim 1 of one of the two alternative definitions for the pouches' sensorial differences (see above at Section VII of the Facts and Submissions), the Board is satisfied that also the First Auxiliary Request complies with Article 54 (1) and (2) EPC 1973 as well as with the requirements of Article 123(2) and (3) EPC.

6. Inventive step: claim 1

6.1 The Board notes that claim 1 of this request has been limited to display packs wherein the groups of multi-compartment pouches must be different in their "colour, shape, size, pattern or ornament" (i.e. the claim requires visible differences among the pouches). However, the Board concurs with the Opponent that also this limitation does not necessarily imply that the visible differences must also be immediately perceivable by the consumer from the exterior of the see-through container, e.g. without taking this latter off from the shell and without opening it.

6.2 Thus, also for claim 1 of the First Auxiliary Request the assessment of inventive step boils down to the question whether the person skilled in the art aiming at solving the same technical problem identified above (at point 4.4) and starting from the relevant technical teaching of document (10) would have arrived at the claimed subject-matter without exercising inventive ingenuity.

The Board notes that (differently from the case of claim 1 of the Main Request) it cannot be assumed that any reasonable reduction into practice of the relevant technical teaching of document (10) would inevitably result in a combination of pouches as that present in the container of the presently claimed display pack. Indeed, in the absence of any specific disclosure in this citation as to the nature of the (necessarily implied) differences required for rendering identifiable the different pouches, the skilled reader of document (10) has no reason to presume that the pouches of this prior art must necessarily differ in their colour, shape, size, pattern or ornament (rather than e.g. in that they might have been printed or labelled with their chemical composition or with use instructions or rendered sensorially different by their smell, or feel, etc.).

Hence, to arrive from the prior art of departure to the subject-matter of claim 1 of the First Auxiliary Request, the skilled person needs some suggestion as to the possibility of carrying out the relevant teaching of document (10) by using pouches that (beside being multi-compartment) are sensorially different in their colour, shape, size, pattern or ornament.

The Board stresses again that document (10) is totally silent as to the nature of the sensorial distinctions (implicitly required for) rendering distinguishable the different detergent unit-dose pouches in the combination thereof suggested in this citation. Moreover, the other prior art cited by the Opponent is found not to refer at all to combinations of pouches containing different detergent unit-doses.

Hence, the Opponent has not succeeded in rendering credible that the skilled person starting from the relevant instruction in document (10) would consider obvious to carry out such teaching (also) by using pouches of different colour, shape, size, pattern or ornament.

Thus, the Board finds that the subject-matter of claim 1 of the First Auxiliary Request cannot possibly descend in an obvious manner from the available prior art.

7. Inventive step: claim 5

7.1 This claim differs from claim 1 of the same request (see above Section VII of the Facts and Submission), inter alia, in that the former specifies the volume and aspect ratio of the pouches and requires the multi-compartment pouches to be water-soluble and to have their compartments in generally superposed or superposable relationship.

7.2 The Board notes that document (10) undisputedly refers to laundry treatment products only and does not disclose pouch dimensions as those defined in present claim 5.

Moreover, the Opponent has not disputed the Proprietor's argument that the above-identified claim features are necessary to render the multi-compartment pouches of this detergent pack particularly suitable for fitting in the drawers of dishwashing machines. This Party has only argued that to arrive at these additional features the skilled person would only need to carry out a conventional adaptation of the multi-compartment pouches disclosed in document (10).

However, in the absence of any evidence that multi-compartment water-soluble pouches had already been used for delivering detergent unit-doses in automatic dishwashing, it cannot be considered obvious for the skilled person starting from document (10) to arrive at the subject-matter of claim 5 of the First Auxiliary Request.

Thus, also the subject-matter of this claim is not rendered obvious by the cited prior art.

8. Inventive step: claims 2 to 4 and 6 and 7

Since these claims of the First Auxiliary Request define preferred embodiments of the display packs of claims 1 and 5 respectively, the same reasons indicated above for the finding that the available prior art does not render obvious the subject-matter of claims 1 and 5, apply also to the subject-matter of claims 2 to 4 and 6 and 7, respectively.

Hence the Board concludes that the First Auxiliary Request also complies with the requirements of Article 56 EPC 1973 and, hence, is allowable.

ORDER

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the Opposition Division with the order to maintain the patent on the basis of the First Auxiliary Request submitted with the grounds of appeal and a description to be adapted thereto.

This decision  T 1350/09 (pdf has European Case Law Identifier:  ECLI:EP:BA:2012:T135009.20120330. The file wrapper can be found here. Photo by  Anastasia Lavrinovich (Meelinaobtained via PixaBay  under the PixaBay license (no changes made). 








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