T 1188/15 - Article 69 and sufficiency

Key points

• The case deals with insufficient disclosure of a parameter that is poorly defined in the claim. The Board is from the outside quite clear that the invention is not sufficiently disclosed. The argument that the specification provides information about the meaning of the parameter recited in the claims, is not accepted, in view of Article 69 EPC.
• " The appellant's argument that Article 69 EPC provided a basis for the skilled person to only consider stretch along the length of the waistband is not persuasive. At no time has a question regarding the clear linguistic structure, scope or meaning of the subject-matter of claim 1 been raised which could provide justification for interpretation of this in the light of the description." 

T 1188/15 - link

VIII. Claim 1 of both the main request and auxiliary request 1 reads as follows:

"An article of apparel (10) comprising:
a pelvic region (120) for covering a pelvic area (20) of a wearer (100), the pelvic region defining a waistband (22) for extending around a waist of the wearer, the waistband having a first layer that defines a portion of an exterior surface (13) of the apparel, the first layer being formed from a first woven textile (11) that exhibits at least thirty percent stretch prior to tensile failure, and the waistband having a second layer that defines a portion of an interior surface (14) of the apparel, the second layer being formed from a second woven textile (12) that exhibits less than ten percent stretch prior to tensile failure; and
a pair of leg regions (30) for covering at least a portion of legs of the wearer, a majority of the exterior surface and the interior surface of the apparel in the leg regions being formed from the first woven textile."

Reasons for the Decision

1. Main request

1.1 Article 100(b) EPC

The ground for opposition under Article 100(b) EPC prejudices the maintenance of the patent according to the main request (as granted).

1.2 The skilled person is unable to carry out the invention according to the main request at least because no direction of measurement of the claimed stretch prior to tensile failure of the woven textiles is given in claim 1 and, already from common general knowledge, the skilled person is aware that woven textile materials exhibit different stretch behaviour dependent upon the direction of measurement.

[...]

1.5 The appellant's argument that the measurement direction of the claimed stretch was clearly along the length of the waistband, and that any other interpretation would be obtuse, is not accepted. Claim 1 itself provides no indication in this respect, with the parameter 'stretch prior to tensile failure' simply being given range limits of at least thirty percent and less than ten percent, without any indication, even implicit, of the direction in which this is to be measured. The reference to col. 4, lines 48 to 55 of the patent specification referring to securing of the apparel to the individual does not help in this respect, not least as this concerns a particular embodiment of the invention in the form of water shorts (see paragraph [0017]), whereas claim 1 has a far broader scope covering simply an article of apparel with a waistband and a pair of leg regions. 

1.7 The appellant's argument that Article 69 EPC provided a basis for the skilled person to only consider stretch along the length of the waistband is not persuasive. At no time has a question regarding the clear linguistic structure, scope or meaning of the subject-matter of claim 1 been raised which could provide justification for interpretation of this in the light of the description. The Board also sees no difficulty with the meaning of claim 1, the claim simply being of a broad scope, specifically encompassing stretch prior to tensile failure in any direction whatsoever of the first and second woven textile in any article of apparel having the defined features. The skilled person thus has no requirement to interpret the claim in a more limited sense in the light of a specific embodiment of the description to which the claim is not limited, the claim itself imparting a clear and credible technical teaching to the skilled reader.