T 1872/17 - Inspection of samples

Key points

• “Claim 1 of the main request defines a cosmetic water-based ink in form of a suspension comprising ...”
• “Inspection of samples of the compositions used in these comparative tests during the oral proceedings held before the Board on 26 April 2021 confirmed that the composition of "Versuch 4" showed similar low pigment settlement as the composition of "Versuch 3" and that when drawing multiple lines on the back of a hand without reloading the used applicator the composition of "Versuch 3" showed a slightly increased fading tendency in comparison with the composition "Versuch 4".
• In view of the presented evidence the Board is satisfied that the use of the particular non-ionic surfactant [having feature X] is associated with the advantage of reduced fading upon application of a single loading. The problem to be solved may therefore be seen in the provision of an cosmetic water-based ink in form of a suspension with such improved resistance to fading.”

T 1872/17 - 

https://www.epo.org/law-practice/case-law-appeals/recent/t171872eu1.html

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2.3 Problem to be solved

With the submission of 15 December 2020 the appellant provided results of comparative tests involving a composition according to example 3 of document D5 ("Versuch 1"), a similar composition which differed in the additional presence of sodium polyacrylate as thickener ("Versuch 3") and a similar composition comprising the sodium polyacrylate as thickener and in which the polyoxyethylene laurylether (21 EO, HLB 19) of example 3 of document D5 is replaced by PEG-6 caprylic/Caprylic glycerides ("Versuch 4"). The composition of "Versuch 4" represents a composition as defined in the claims of the main request.

The results presented on page 8 (see diagram and photo) of the appellant's submission of 15 December 2020 indicate that the composition of "Versuch 1" shows lower viscosity and faster pigment settlement associated with cake-formation in comparison with a composition which additionally included sodium polyacrylate as thickener "Versuch 3".

The results of the comparative tests between the composition of "Versuch 3" and "Versuch 4", which involved drawing three lines of each of the compositions on the back of a hand without reloading the used applicator (see page 10 of the submission of 15 December 2020), further suggest a slightly increased fading tendency of the composition of "Versuch 3" in comparison with the composition of "Versuch 4".

Inspection of samples of the compositions used in these comparative tests during the oral proceedings held before the Board on 26 April 2021 confirmed that the composition of "Versuch 4" showed similar low pigment settlement as the composition of "Versuch 3" and that when drawing multiple lines on the back of a hand without reloading the used applicator the composition of "Versuch 3" showed a slightly increased fading tendency in comparison with the composition "Versuch 4".

In view of the presented evidence the Board is satisfied that the use of the particular non-ionic surfactant containing between 4 and 8 units of PEG or PPG and a C8-C16 fatty acid residue as defined in claim 1 of the main request is associated with the advantage of reduced fading upon application of a single loading. The problem to be solved may therefore be seen in the provision of an cosmetic water-based ink in form of a suspension with such improved resistance to fading.

2.4 Assessment of the solution

The Board observes that document D5 refers to the use of polyoxyethylene type non-ionic surface agents as suitable non-ionic dispersing agents, but only exemplifies ethers of polyoxyethylene without mention of fatty acid esters (see D5 paragraph 21). In this context the skilled person may be aware from document D1 that ethoxylated fatty acids are non-ionic surfactants suitable for use in cosmetics. However, no prior art suggests that the use of a compound which contains between 4 and 8 units of PEG or PPG and a C8-C16 fatty acid residue as non-ionic surfactant allows for improved resistance to fading of the compositions as defined in the claims of the main request.

The Board therefore concludes that the subject-matter defined in the claims of the main request involves an inventive step (Article 56 EPC).

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the examining division with the order to grant a patent on the basis of the set of claims of the main request filed with the statement setting out the grounds of appeal and a description to be adapted.