T 1502/08 – Citing Drawbacks Is Not Teaching Away

Be warned - the present decision might definitely change your perception of Tex-Mex food. If you read on, never again will you be able to eat tacos without checking the precise shape of their shells.

The subject-matter of the present invention concerns stable, self-standing taco shells.

Document D1, which constitutes the closest prior art, is also concerned with stable self-standing taco shells, which, like the taco shells of the present application, consist of a first and a second sidewall, the taco shells being configured such that the ratio height of the shell to width of the base is within the range of 1.50 to 4.0. The two sidewalls are connected by a W-shaped bottom.

Accordingly, the technical problem to be solved is the provision of structurally simpler, stable and self-standing taco shells. This problem was solved by replacing the W-shaped base according to D1 by a flat base. In the light of the overall teaching of the present application, the board is convinced that the problem has been plausibly solved.

The provision of structurally simpler products may provide a valuable contribution to the state of the art and therefore give rise to an inventive step provided that the state of the art does not hint at the proposed solution and/or the simpler structure is not the result of concessions made in connection with other properties of the product.

In the present case, it is noted that taco shells having a flat bottom are discussed in D1. However, providing a plurality of support points at different elevations, which causes the taco shell to be unstable when it is supported by its base, instead of providing coplanar support points, such a taco shell is in the eyes of the author of D1 not considered to be sufficiently stable.

This passage does not teach away from using taco shells with a flat base. It rather tells the skilled person that there is a trade-off between simplicity of structure on the one hand and maximum stability on the other hand: if one is prepared to sacrifice maximum stability and accept that the taco shell does not stand perfectly when put onto an even surface but might wobble slightly, then a structurally simpler flat base is feasible.

Sacrificing stability in favour of a simpler structure does therefore not involve an inventive step in the present case, so the requirements of A 56 are not met. [3.2] 

To read the whole decision, click here.