T 0341/24 - An unusual feature for novelty and inventive step

Key points

•  Claim 1 is directed to "A bottom dispensing package (1) for a liquid composition", i.e. a bottle, with a container and a base. The base has a slit-valve. The claim specifies inter alia that the resiliently squeezable container (10) has an elasticity index of greater than 0.65% to 2.0%, as measured using the elasticity index method described herein. The 
• "... it was not disputed by the patent proprietor that the elasticity index could be regarded as an unusual parameter"
• D1 is Henkel, "Record ID 63429 in the mintel GNPD database of a dishwashing product ("Pril Kraft-Gel")", Host: Mintel June 1998
• The Mintel database will have become even more important as prior art after G 1/23!
• For novelty: "It is undisputed that a bottom squeezable container as detailed in D1 was put on the market and was publicly available before the priority date of the patent in suit."
• "ith regard to the elasticity index (identified by the parties as feature 1h)), opponent 1 indicated that measurements according to the instructions provided in paragraphs [0072] to [0076] of the patent in suit, were made on 15 May 2022 on a physical model according to D1 (P98, with photos [in] D3)."
• "The model P98 was available at the archive premises of opponent 1 and the elasticity index results were 0.871% with an attached label and 1.070% without an attached label, therefore anticipating feature 1h)."
• The opponent is Henkel, which seems to be the manufacturer of Pril Kraft Gel of D1.
• " the board is not convinced that it has been proven beyond any reasonable doubt by opponent 1 that the alleged model of P98 with pictures of D3, corresponded to the container of D1. Indeed, there is no clear link between D1 and the model P98/D3, apart from opponent 1's allegations."
• This will prove fatal for the attack.
• "especially in the absence of any kind of test report, the mere statement of opponent 1 that the container had a certain elasticity index cannot amount to a sufficient evidence that the product of the prior use according to D1 did indeed present feature 1h) [ the elasticity index]."
• Another practical lesson.
• The Board concludes that the opponent has insufficiently shown that the  bottle of D1 (as public prior use) had the recited property.
• For inventive step, the patent defines as "the problem to be solved, the container should avoid leakage when exposed to sunlight, i.e. at a peak pressure measured at 40°C"
• "The board agrees with the patent proprietor that starting from D1 as closest prior art, the claimed elasticity index has the technical effect of making the bottom dispensing package more resilient which therefore reduces leakage, especially by reducing the peak pressure at 40°C. This is apparent from the experiments provided in the contested patent, paragraph [0080] as well as those in the letter dated 7 January 2021. "
• "Starting from D1 as closest prior art, the board agrees with the patent proprietor that the skilled person, faced with the problem of reducing leakage, would not be restricted to seeking solutions only on the container but would rather focus on the opening and the slit valve of D1. There is indeed no hint in D1 or in any of the available prior art, nor does it belong to the skilled person's common general knowledge, that the elasticity of the container would be relevant to leakage. Therefore, for this reason alone, the skilled person could modify the elasticity index of the prior use of D1, but there is no reason why they would do it, especially in order to arrive within the claimed range."
• " the board concurs with the patent proprietor that it is generally for the opponents to demonstrate that a container with the features of the claim does not lead to the desired technical effect. In the absence of such evidence from the opponents and in view of the results provided by the patent proprietor (see paragraph [0080] of the contested patent), the board does not see the limits of the claimed range for the elasticity index as arbitrary or not purposive to solve the problem posed. "

EPO 

The link to the decision can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t240341eu1