22 Sep 2016

T 1612/13 - Evidence of improvement

Key points


  • In this opposition case, both parties had filing evidence regarding whether the invention provided an improvement over the art.
  • " For the Board, considering the wealth of experiments and the more complete information provided, the Appellant's test reports have a higher probative force and are thus more convincing than those of the Respondent. The Respondent's evidence is thus not sufficient for diminishing substantially the cogency of the experimental evidence and statistical analyses submitted by the Appellant/Patent Proprietor. Consequently, the Board is satisfied that the Appellant has convincingly demonstrated that pigments prepared by a method according to claim 1 as granted have improved gloss."

T 1612/13 - link
Reasons for the Decision
8. Success of the solution
Various items of evidence were submitted by the parties with regard to the question of whether or not the improvements invoked by the Appellant are actually achieved when performing the claimed subject-matter. As regards the evidence on file the Board observes the following.

8.4 Probative force of documents D4, D5 and D10
8.4.1 The Board remarks that
- whereas the Appellant, in carrying out the tests as described in D5, measured each paint sample at three separate times (see points 3.1 and 4.1), and even increased the number of readings in D10 (point 11),
- the Respondent did not even indicate the number of readings for each sample tested according to D4.
8.4.2 Moreover, the statistical evaluation of the readings carried out by the Appellant in its experimental reports was not reworked by the Respondent, which only stated that the consideration of the standard deviation would be more significant for the evaluation of the experimental results than the statistical analysis of the Appellant. Even though the consideration of the standard deviation is undoubtedly of importance in the measurements of gloss, as confirmed by norms D11 (point 11) and D12 (point 10 and Table D.1), the Respondent's statement is, however, not supported by further evidence. Moreover, it is directly apparent that the statistical analysis carried out by the Appellant takes also into consideration standard deviation values (see, for example, D5, Tables 2, 5 and 6 and D10, point 12.5.

8.4.3 For the Board, considering the wealth of experiments and the more complete information provided, the Appellant's test reports have a higher probative force and are thus more convincing than those of the Respondent.
The Respondent's evidence is thus not sufficient for diminishing substantially the cogency of the experimental evidence and statistical analyses submitted by the Appellant/Patent Proprietor.
Consequently, the Board is satisfied that the Appellant has convincingly demonstrated that pigments prepared by a method according to claim 1 as granted have improved gloss.

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