Wednesday, 20 January 2010

T 1689/07 – Colour Can Be Technical

[...] Claim 1 defines an absorbent article for feminine hygiene inter alia by the feature requiring that it is provided with a colour change material selected from a thermochromic material, a piezochromic material, a photochromic material and combination thereof.

The Examining Division came to the conclusion that the claimed article was an aesthetic creation since this technical feature distinguishing the claimed article from the closest prior art had solely an aesthetic effect, namely to render the article more pleasant to use. [2.1]

The article claimed is as such a technical product. The effect linked to the incorporation in the article of the colour change material is a change of colour induced by an external stimulus on the article, namely a change of temperature, an exertion of pressure and/or an exposure to light. Such a change of colour, which can also be described as a modification of the light absorption by the article, is a technical effect that can be measured by technical means, e.g. a colorimeter.

Whether the final aim of the technical effect achieved by the claimed absorbent i.e. the colour change, is only aesthetic, what the Appellant denies, has no impact on the technical nature of the claimed absorbent article itself. It is in fact common practice that inventions such as dyes or hair colouring compositions, although having only an aesthetic goal, are nevertheless patentable inventions in the sense of A 52 since the claimed absorbent for feminine hygiene, as dyes and hair colouring compositions, are not per se aesthetic creations.

Therefore, the Board arrives at the conclusion that the absorbent article according to claim 1 is not an aesthetic creation per se in the sense of A 52(2)b) and (3), and thus a patentable invention within the meaning of A 52(1). [2.2] 

To read the whole decision, click here.