The problem-solution approach is intended to be as objective as possible : subjective aspects have to be ignored. Inventors may sometimes have the impression that this is unfair, because subjectively, they have indeed made an invention. The present case corresponds to such a situation.
The opponent filed an appeal against the decision of the Opposition Division to reject the opposition.
Claim 1 before the Board read (in English translation):
1. Milking cup (1) comprising a cup sleeve (2), a teat rubber (3) inserted in the cup sleeve (2) with a head piece (4) and an intake socket (5) connectable with a milk discharge conduit, and comprising an air inlet valve (13) provided on the milking cup (1) and connected with the interior space of the intake socket (5) via a first conduit (14), which lets atmospheric air penetrate into the intake socket (5) in response to a relief phase, during which a higher pressure causing a folding-in of the intake socket (5) relative to the milking vacuum pending in the milk discharge conduit is generated in a clearance (12) between the cup sleeve (2) and the intake socket (5), characterized in that an opening (25) toward the interior space of the teat rubber (3) is provided in the head piece (4) of the teat rubber (3), wherein the opening (25) can controllably be supplied with atmospheric air in response to the relief phase, and a second conduit (24) is provided in flow connection with the opening and the air inlet valve so as to supply the opening with atmospheric air.
The Board found this request to lack inventive step:
*** Translation of the German original ***
[2.1] It is undisputed that D5 is the closest prior art.
This document discloses […] a milking cup (1) comprising a cup sleeve (2), a teat rubber (3) inserted in the cup sleeve (2) with a head piece (4) and an intake socket (5) connectable with a milk discharge conduit, and comprising an air inlet valve (13) provided on the milking cup (1) and connected with the interior space of the intake socket (5) via a first conduit (14), which lets atmospheric air penetrate into the intake socket (5) in response to a relief phase, during which a higher pressure causing a folding-in of the intake socket (5) relative to the milking vacuum pending in the milk discharge conduit is generated in a clearance (12) between the cup sleeve (2) and the intake socket (5).[2.2] The subject-matter of claim 1 according to the main request […] differs from the milking cup disclosed in D5 in that an opening toward the interior space of the teat rubber is provided in the head piece of the teat rubber, wherein the opening can controllably be supplied with atmospheric air in response to the relief phase, and a second conduit (24) is provided in flow connection with the opening and the air inlet valve so as to supply the opening with atmospheric air.
[2.3] According to the opposed patent, the problem underlying the invention […] consists in providing an improved milking cup that has a simple structure, is easy to clean and which has properties that increase the well-being of the animal during milking.
[2.4] The features known from D5 ensure that the udder of the domestic animal to be milked is handled in a gentle way; the handling and the cleaning of the milking apparatus is easy. This is indeed acknowledged in the opposed patent […]. Moreover, D5 […] discloses that the teat is massaged and injections of milk back into the teat are avoided by letting atmospheric air flow into the intake socket.
Starting from D5, the objective technical problem can be seen in further improving the well-being of the animal that is being milked during the milking.
[2.5] The [patent proprietor] has asserted that in the present case the appropriate skilled person is an agrobiologist having little mechanical engineering knowledge. The Board cannot endorse this opinion. For developing a milking cup as the one claimed what is needed is not only in-depth knowledge of the anatomy and the behaviour of domestic animals that are to be milked, and in particular of cows, but also extensive knowledge in the filed of milking cups and of pneumatic milking installations, in order to be able to constructively implement the animal-specific requirements. A milking cup is a technically complex object, as also follows from the submissions of the inventor to this effect.
Therefore, in the present case, the “skilled person” consists in a “team of skilled persons” comprising an agrobiologist and a mechanical engineer having experience in the field of milking cups and pneumatic milking installations.
[2.6] From D2 […] it is known to provide an opening toward the interior space of the teat rubber in the head piece of the teat rubber, wherein the opening can controllably be supplied with atmospheric air in response to the relief phase, and to provide a conduit in flow connection with the opening and the air inlet valve so as to supply the opening with atmospheric air.This results in massaging the teat and circulatory problems of the teat are avoided […].
As improved blood circulation and massaging the teats can only improve the well-being of the domestic animal to be milked, it is obvious for the skilled person to introduce atmospheric air also into the head piece of the teat rubber known from D5, as taught in D2.
[2.7] The [patent proprietor] has submitted that both D5 and D2 have been invented by the same inventor as the opposed patent and that the inventor already knew D2 when he was developing D5. Therefore, it could not be obvious to combine D5 and D2. In other words, what is not obvious for the inventor cannot be obvious for the skilled person. The Board cannot endorse this view. According to the established case law, the skilled person within the meaning of A 56 is a normal expert who is active in the field of the invention and who has an average knowledge and average skills. He is not an outstanding or smart (gewieft) skilled person, and in particular, he is not an inventor (see Schulte, PatG, 8th edition, § 4, marginal numbers 39-41 and T 39/93).
D2 and D5 disclose different measures each of which contributes to the well-being during milking of a domestic animal that is to be milked. As there was no prejudice against it, there is no reason why a skilled person should not use both measures simultaneously.
The [patent proprietor] also asserted that the skilled person could not have found any incentive in D2 to further develop a milking cup known from D5 because D5 already solved the problem underlying the invention. Again, the Board cannot agree, because, as explained above, the problem to be solved in respect of the closest prior art D5 is to “further improve” the well-being during milking of the domestic animal that is to be milked, i.e. to provide a better solution for a problem that has already been solved in D5.
Although the milking cup disclosed in D5 already ensures gentle handling of the udder of the animal, its first objective is to avoid wetting of the air inlet valve by milk, as well as obtaining an improvement of the milk outflow. In contrast, the teaching of D2 provides improvements of the health of the udder […] because it reduces the constriction of the teat region and thereby improves the blood circulation […]. Therefore, it was advantageous to simultaneously implement both measures.
Finally, the [patent proprietor] has submitted that it was not obvious to implement the control of the conduit letting air into the head peace and into the suction-side end of the teat rubber by means of a single valve, because the valves of D2 and D5 were different and this [implementation] was technically too complicated for an agrobiologist.
Although the valve of D5 is a valve that is closed when it is in its idle position (Ruhestellung) and the valve of D2 is open when it is in its idle position, their way of functioning is the same, i.e. both supply the conduit connected to them with atmospheric air during the relief phase (when the annular space is brought to atmospheric pressure). Therefore, it is obvious for the mechanical engineer who is familiar with milking cups and pneumatic milking installations – who is part of the “team” defined above) – that the valve provided in D5 is sufficient for implementing the teaching of D2 and that he only has to provide a second conduit.
[2.8] Consequently, the subject-matter of claim 1 of the main request […] does not involve an inventive step.
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