Key points
- On the EQE, you are thaught to include no pointers to the solution in the objective technical problem.
- Claim 1 in this case: "1. A transparent or translucent liquid laundry detergent composition, wherein the composition comprises
- from 1% to 20% by weight of alkyl ether sulfate ...
- from 0.1% to 5% by weight of amine oxide;
- from 0.1% to 5% of a cleaning polymer; from 1% to 15% by weight of a solvent comprising 1,2-propanediol; and water;
- wherein the transparent or translucent composition has 50% transmittance or greater of light [...] "
- The parties did not dispute the view that D2 is the closest prior art. D2 is concerned with the preparation of liquid detergent compositions comprising only biodegradable and eco-friendly ingredients and exhibiting exceptional performance compared with traditional detergent formulations
- It was undisputed that the composition of claim 1 as granted differs from those of D2 in that it contains 0.1 to 5 wt.% of an amine oxide and in that it is transparent or translucent.
- As to the technical effect brought about by these differences having regard to the closest prior art, the appellant did not contest the view that the comparative tests in Examples 2 to 4 of the patent show that the composition of claim 1 performs better than two known eco-friendly laundry detergents and similarly to a traditional laundry detergent. The main point in dispute between the parties was whether the transparent or translucent feature in claim 1 was technical or, at least, whether it contributed to the technical character of the invention.
- Ultimately, the question arose as to whether the transparent or translucent feature could be taken into account in the assessment of inventive step.
- According to the appellant [opponent], the transparent or translucent feature was merely aesthetic and the patent did not explain how transparency or translucency contributed to the technical character of the invention. Therefore, the feature could not be taken into account in the assessment of inventive step.
- The board disagrees. Claim 1 defines a liquid laundry detergent composition characterised by the result to be achieved, namely that the composition is to have at least 50% transmittance of light []. This result implies that the composition is transparent or translucent. Thus, transparency or translucency is not only a technical feature that physically characterises the claimed composition. It is, in fact, also a technical effect resulting from the combination of ingredients defined in claim 1. Contrary to the appellant's view, neither transparency nor translucency has to produce additional technical effects in order to be taken into account in the assessment of inventive step. They themselves make a technical contribution to the invention. Moreover, as noted by the respondent [proprietor], being transparent or translucent is a desirable feature since it shows that the composition is stable and it is a feature associated with cleanliness by many users.
- " the objective technical problem solved by the composition of claim 1 can be defined as providing a transparent or translucent liquid laundry detergent composition based on renewable components that has a cleaning performance comparable to that of traditional detergents."
- So the distinguishing feature is included in the OTP.
- The appellant did not cite any prior-art document suggesting that the addition to the compositions of D2 of an amine oxide in the amounts defined in claim 1 could solve this objective technical problem. Therefore, the subject-matter of claim 1 is not obvious.
- Apparently, the opponent did not contest that adding amine oxides made the composition more transparent than the one of D2, even though the Board only states that "examples 2 to 4 of the patent show that the composition of claim 1 performs better than two known eco-friendly laundry detergents and similarly to a traditional laundry detergent".
- Would the outcome of the case have been different if the claim only recited the amount of amine oxide as a distinguishing feature and mentioned transparency in the description?
EPO
The link to the decision can be found after the jump.
This case illustrates my comment of 21 June in relation to T 454/23. Here, the objective technical problem incorporates the problem as exposed in the application and only adds to the initial definition an emphasis on the transparent/translucent character of the detergent, a feature which has a basis in the application.
ReplyDeleteIt is to be noted that the patent owner has depicted in its argument the transparent/translucent feature as a « constraint » which relates to the problem to be solved.