This decision contains an interesting statement on intermediate generalisation.
Claim 1 of the main request read :
Dispenser head (1,20,40,60) with a discharge channel (2,22,42, 62) for the discharge of products such as foams, for example shaving foam or gel, self-foaming products and other products able to be applied by a pressure-charged system, from a dispenser container normally standing under an excess pressure, which dispenser head can be plugged onto the discharge valve of the dispenser container and which opens the discharge valve of the dispenser container by an external mechanical pressure exerted thereon and a thereby triggered tipping movement of its upper part (10,30,50,70) about a fulcrum so that the product flows at excess pressure from the discharge valve into the discharge channel (2,22,42,62) of the dispenser head (1,20,40,60) and issues through the discharge opening (3,23,43,63) thereof, wherein the dispenser head (1,20,40,60) is constructed with an additional closure device (1’,21,41,61) with a resetting element (6,26,46,66) by which the discharge opening (3,23,43,63) of the discharge channel (2,22,42,62) is opened and is closed again after conclusion of the dispensing process, characterised in that the resetting element (6,26,46,66) is resiliently biased into the closed setting and is so constructed that the opening and/or closing of the discharge opening (3,23,43,63) takes place automatically and the automatic opening and/or closing is assisted by the product standing under excess pressure.
The Board found this claim to lack novelty. It then dealt with auxiliary requests II and III.
Both auxiliary requests had an additional feature in the preamble:
… wherein the closure device (1’,21,61) consists in a valve housing (4,24,64) forming part of the discharge channel (2,22,62), a pin-shaped valve body (5,25,65) with a valve head (7,27,67) for closing the discharge opening (3,23,63) and a resetting element (6,26,66), …
Auxiliary request II also had a different characterising part:
… characterised in that the resetting element (6,26,66) is resiliently biased into the closed setting and is so constructed that it is displaced by the tipping movement of the upper part (10,30,70) and thereby automatically opens and closes the discharge opening (3,23,43,63) and the opening and/or closing of the discharge opening (3,23,43,63) takes place automatically and the automatic opening and/or closing is assisted by the product standing under excess pressure.
Auxiliary request III also had an additional feature in the characterising part:
… characterised in that the valve body (5,25,65) is movable between the open and the closed position by displacing its rear end (12,26’,72’) that is guided against a fixed bar (9,29,69) and in that the resetting element (6,26,46,66) is resiliently biased into the closed setting and is so constructed that the opening and/or closing of the discharge opening (3,23,43,63) takes place automatically and the automatic opening and/or closing is assisted by the product standing under excess pressure.
*** Translated from the German ***
[4.1] Auxiliary requests II and III both add features to claim 1 in order to more precisely define the movements automatically opening or closing. According to the [patent proprietor] these features are disclosed in the description; it cites passages where the information is found for both auxiliary requests and for all the embodiments I, II and IV to be covered.
[4.2] None of these passages provides a literal basis. Moreover, the cited passages also contain other features that have not been incorporated into claim 1. One may, for example, cite – referring to the passages cited by the [patent proprietor] – the guiding of the resetting element having the shape of an elastic dome on a circular path towards a fixed bar, triggered by the tipping movement (embodiment I […]); or the rear part of the double wall of a valve body casing formed to be an elastic resetting element which is guided on a circular path towards a fixed bar (embodiment II […]); or the elastic rear end of the valve in the shape of a double wall of a valve body, which serves as a resetting element and which is guided by the tipping movement from its locked position, by means of a projecting rib of a fixed bar (embodiment IV […]).
[4.3] As a rule it is not admissible under A 123(2) to extract isolated features from a set of features which had originally been disclosed in combination, unless it is obvious that there is no clearly recognisable functional or structural relationship among the features under consideration (see Case Law of the Boards of Appeal, 5th edition, December 2006, III.A.A, page 240, and decisions T 1067/97 and T 25/03 cited therein).
The Board is of the opinion that in principle it is possible that the skilled person, when looking at different embodiments side by side, immediately and unambiguously recognises structural and functional correspondences (Übereinkünfte) and that he thereby is enabled to abstract and to claim a general teaching that comprises these correspondences.
[4.4] In the present case the three embodiments I, II and IV appear to have in common that the lateral displacement of the valve body is caused by the fact that the resetting element that is connected to the valve body is guided via a fixed bar when the head undergoes the tipping movement, which allows automatic opening or closing.
To the extent that a general teaching can be derived from looking at embodiments I, II and IV side by side and is claimed, the claim would at least have to contain the common features. This is not the case for claim 1 according to auxiliary requests II or III: for example, claim 1 according to auxiliary request II does not contain the guidance of the resetting element via a fixed bar or the valve body, whereas claim 1 according to auxiliary request III mentions the bar and the valve body but does not mention the guidance of the resetting element via the bar or the activation of the valve body via the resetting element.
Therefore, in both cases claim 1 comprises teachings that are broader than the general teaching which the skilled person possibly could have deduced from the original disclosure.
Thus claim 1 according to auxiliary requests II or III go beyond the content of the application as originally filed, [which violates] A 123(2).
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