Wednesday, 7 April 2021

T 2393/17 - mere assertion of lack of information not enough for insufficiency



Claim 1 for a dishwasher in this opposition appeal comprises the feature that 

either said bottom wall (14) or said cover (12) incorporating a first and a second half-conduit (28, 30) tapering at respective ends facing each other, so that they form an air gap device, 

The opponent objected that the patent does not sufficiently disclose such incorporated half-conduits. The boards does not agree, and finds that it is not enough to state insufficiency but that one has to address why this particular feature would not be possible for the skilled person to produce. 

(...)

Reasons for the Decision

1. The appeal is admissible.

2. Background of the invention

The patent relates to a water supply commonly known as "air break" in dishwashers (paragraph 0001) that typically comprises a flattened hollow body of plastic material, and adapted to perform various functions of providing a vent for vapour formed in the washing chamber, an air gap for the water supply, or a collector of water for use in forming regeneration brine for the water softener (paragraph 0002). The air gap more particularly provides an interruption of the conduit guiding the supply of fresh water to allow the above functions. In paragraph 0010 the aim to optimise the air gap device, in particular avoiding the need for deflectors or the like is expressed. The core of the solution consists in providing two tubular facing ends of the first and second half-conduits attached to either the bottom or cover of the device and aligned along the same straight line.

3. Sufficiency - Art 100 b) EPC

3.1 The appellant considers the patent does not sufficiently disclose how to realise a first and a second tubular half-conduit being incorporated in the bottom wall or cover.

3.2 The Board disagrees. According to paragraph 0013, the claimed water supply device is made of plastic material using the well known injection moulding process. Manufacturing the first and second half-conduits tubular and tapering at their respective ends to face each other such that they are made integrally with the bottom wall -or cover- as explained in paragraph 0016 realises the requirement of claim 1 that the bottom wall -or cover- incorporates the above half conduits. In the Board's view this can be performed by the skilled person's putting into practise routine injection moulding steps of plastic material, that is injecting molten plastic into two half-moulds having cavities reproducing the tubular shape of the half conduits on the flat surface of the bottom -or cover- wall.

3.3 By simply stating that the description of the patent does not contain information on how the tubular half conduits are manufactured so as to be incorporated in one of the walls, the appellant has not substantiated by verifiable facts his claim that forming a tubular shape integrally with a flat surface of the bottom -or cover- wall might be impossible to obtain by injection moulding of plastic material (See CLBA, 9th edition 2019, II.C.9).

3.4 The Board thus confirms the opposition division's positive assessment of sufficiency of disclosure, Article 100(b) EPC.

4. Novelty over D3 or D7

(...)

5. Inventive step starting from D7 or D3

(...)

7. In the light of the above, the Board confirms the opposition division's decision to reject the opposition, Article 101(2) EPC.

Order

For these reasons it is decided that:

The appeal is dismissed 

This decision T 2393/17 (pdf) has European Case Law Identifier: ECLI:EP:BA:2021:T239317.20210311. The file wrapper can be found here. Photo by congerdesign obtained  via PixaBay under Pixabay License (no changes made).

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