T 0239/23 - Abstract and transfer (not for inventive step)

Key points

• Claim 1 is directed to "An oral pouched snuff product". Inventive step is to be decided on.
• " Combination document D2 discloses Tencel nonwoven materials which are made from regenerated cellulose comprising lyocell staple fibres"
• "it can be argued that the skilled person could have arrived at an oral pouched snuff product wherein the pouch comprises a Tencel nonwoven,[...]  However, the board is not convinced that they would have done so in the light of the areas of application of the Tencel nonwoven mentioned in D2. In the absence of any counter-argument by the appellant opponent 2, the board concurs with the appellant proprietor that the term coverstock in D2 refers to the top ply of a female hygiene product or a diaper. None of these products are suitably sized to be placed in the human mouth cavity. In addition to that, such coverstock is not used by itself in a female hygiene product or diaper - unlike a pouch for smokeless tobacco - but only in conjunction with further layers such as the absorbent core. "
• "Even if it were to be assumed that the skilled person, because of their knowledge of nonwovens and their manufacturing techniques, might have been familiar with the contents of document D2, the board believes that it is beyond their normal skills to abstract and transfer those techniques and the resulting material properties such as the basis weight of the nonwoven to a new field of application. This might have been so if document D2 had taught that Tencel fibre nonwovens are generally equivalent to, and exchangeable with nonwovens used in smokeless tobacco products, e.g. those used in D1. As that is not the case, the skilled person would need to recognize that the Tencel nonwoven used for filters, wipes and hygiene products can be applied elsewhere and would be suitable in particular for making pouches of smokeless tobacco products. In the board's view this goes well beyond their limited skills of abstraction. "

EPO 

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

https://www.epo.org/en/boards-of-appeal/decisions/t230239eu1