T 1050/16 - Parameter unclear, claim insufficiently diclosed

Key points

• In this opposition appeal, the Board considers the claim to be insufficiently disclosed because of the feature that “the length of the crotch potion is between 10% and 40% of the entire length of the article as measured in an extended state of the article”.
• The technical field at issue will now be no surprise to frequent readers: indeed absorbent (hygiene) articles; Board 3.2.06.
• The Board: “ it is not possible for the skilled person to establish the length of the crotch person as required by the features of claim 2 for any other shape than the specific shape shown in Figure 2 of the patent, since the patent does not teach the skilled person how to establish any boundaries of the crotch portion of the absorbent article in general.”
• “Without a teaching in the patent of how to establish the crotch portion and its boundaries, any limits then established by a skilled person would be nothing but entirely arbitrary when defining a crotch portion of the article and its length as required in claim 2 of auxiliary request 2. The skilled person is thus faced with an impossible burden.”
• The decision does not indicate any argument of patentee that the issue is at most a clarity issue and the Board does not comment on this.

EPO T 1050/16  - link


3. Auxiliary request 2 - Article 83 EPC

3.1 Claim 2 of auxiliary request 2 defines inter alia that the length of the crotch potion is between 10% and 40% of the entire length of the article as measured in an extended state of the article.

3.2 However, it is not possible for the skilled person to establish the length of the crotch person as required by the features of claim 2 for any other shape than the specific shape shown in Figure 2 of the patent, since the patent does not teach the skilled person how to establish any boundaries of the crotch portion of the absorbent article in general.

3.3 Contrary to the argument of the appellant, the claim is not limited to articles where the dimensions of the crotch portion can be defined. The claim simply defines that the length of the crotch portion is between 10% and 40% of the entire length of the article as measured in an extended state of the article and that the crotch portion is located between the front portion and the back portion. Without a teaching in the patent of how to establish the crotch portion and its boundaries, any limits then established by a skilled person would be nothing but entirely arbitrary when defining a crotch portion of the article and its length as required in claim 2 of auxiliary request 2. The skilled person is thus faced with an impossible burden.

3.4 Paragraph [0054] belongs to the specific embodiment of Figure 2 where two points at which each leg opening changes most abruptly might be identified. This disclosure of a single embodiment however does not teach the skilled person how to establish what are the points where the angle of the edge of the leg opening changes "most abruptly" and where, for example, they might be located for other shapes of leg opening. It is thus impossible for the skilled person taking into consideration paragraph [0054] to define the boundaries and establish the length of the crotch portion for the other shapes encompassed by the wording of claim 2, i.e. over the whole range claimed.

3.5 The invention according to claim 2 of auxiliary request 2 therefore does not fulfil the requirements of Article 83 EPC. Auxiliary request 2 is thus not allowable.