T 2010/23 - Secrecy on the side of the supplier

Key points

• Claim 1 of the main request reads as follows: "A pigmented aqueous inkjet ink set for manufacturing decorative panels comprising: b) a red aqueous inkjet ink containing a red pigment selected from the group consisting of C.I. Pigment Red 254, C.I. Pigment Red 176 and mixed crystals thereof; c) a yellow aqueous inkjet ink containing a pigment C.I Pigment Yellow 150 or a mixed crystal thereof; and d) a black aqueous inkjet ink containing a carbon black pigment; wherein the aqueous inkjet inks contain a surfactant."
• In case you wonder what the invention is about: "example 2 of the patent demonstrated that true reproduction of wood colours could be obtained with the inkjet set of claim 1. The objective technical problem was therefore how to manufacture decorative surfaces with high productivity by not requiring complex inkjet printers and image processing software for a true reproduction of wood colours."
• The opponent alleges public prior use.
• "The public prior use represented by documents D7 to D15 concerns the sale of certain inks from the respondent (Arcolor AG) to the company Schattdecor. "
• "Invoice D9 discloses a list of inks ordered by Schattdecor, ... in the interest of simplicity, the board refers exclusively to D9 in the context of the issue of public availability."
• "In the declaration, Mr Breuer [of the buyer] explicitly states that the ... D9 concerned a normal sale without any obligation to confidentiality ... This declaration is evidence that there was no implicit confidentiality agreement, and the board finds it more convincing than the appellant's unsupported circumstantial allegations to the contrary."
• I wonder if this is correct. If the buyer selects three pigments in combination in a purchase order, is the seller really free to share that information with others? E.g. with a competitor of the buyer? Can the seller S say to a competitor P  'hey, look, another company buys our product X often together with product Y, perhaps you can try it as well in your company'?
• Of course, the witness of the buyer declared that it was a 'normal sale' and 'without any obligation to confidentiality'. However, a technical person may simply mean that no NDA was signed for the sale. Mr Breuer was not heard as a witness. 
• Sales under confidentiality, as encountered in the case law, usually involve the buyer's obligation, imposed by the seller, to keep information obtained from the seller secret, it seems to me. 
• The Board found the claim obvious over the prior use. No other claim requests were allowable and admissible.

EPO 

The link to the decision is provided after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t232010eu1