The appeal was filed by the opponent whose opposition had been rejected by the Opposition Division.
Claim 1 as granted read:
1. A laundry detergent composition comprising a bleach system which contains a hydrogen peroxide source and at least 2.5% by weight of a peroxyacid bleach precursor, at least 15% by weight of a carbonate source, which may include the hydrogen peroxide source, at least 7% by weight of an acid, preferably an organic acid, whereby a 1% by weight mixture of the composition in demineralised water provides a pH from 8.8 to 9.9, and which further comprises an anionic surfactant.
The decisive question before the Board was whether this claim involved an inventive step:
[2.1] Claim 1 of the patent-in-suit […] defines a GP laundry detergent composition (i.e. a laundry detergent composition generating in situ peroxyacid bleach) containing a hydrogen peroxide source, a peroxyacid bleach precursor (at least 2.5% by weight), a carbonate source (at least 15% by weight) which may simultaneously be the hydrogen peroxide source, an acid (at least 7% by weight) and an anionic surfactant, whereby a 1% by weight mixture of the composition in demineralised water provides a pH of from 8.8 to 9.9.
[2.2] In order to correctly identify the prior art of departure for the assessment of inventive step it is necessary to consider the statements contained in the patent-in-suit as to the technical problem addressed by the invention.
[2.2.1] The Board notes that paragraphs [0002] to [0008] of the patent-in-suit describe the background of the invention by referring to difficulties in formulating GP laundry compositions (i.e. composition in which a peroxyacid bleach is generated in situ from a precursor thereof and from a source of hydrogen peroxide) capable of providing efficient sanitisation simultaneously with excellent cleaning. These difficulties are attributed to the fact that while an highly alkaline pH is necessary for generating the peroxyacid bleach and favoured by certain conventional ingredients of GP laundry compositions (such as percarbonate or certain builders), the same highly alkaline pH is also known to promote dissociation of the acid form of the peroxyacid required for sanitisation. Consistently, the technical problem underlying the invention is then identified in paragraph [0009] of the patent-in-suit as that of providing “efficient antimicrobial performance and/or sanitisation whilst a good cleaning of both bleachable and non-bleachable stains is achieved”.
The patent-in-suit provides examples of the patented compositions. Some quantitative information on the level of biocidal activity aimed at is provided in paragraphs [0016] to [0019] of the patent-in-suit that describe a standard method for measuring the activity of microorganisms and a list of the relevant microorganisms, identify the minimum concentration at which the laundry composition should be used relative to the initial concentration of microorganisms and define some specified minima for the reduction in microorganism activity to be observed.
[2.2.2] The Board considers appropriate to stress that this description of the addressed problem of the background art given in the patent-in-suit appears consistent with the common general knowledge as derivable from the available non-patent literature of documents D12, D14 and D18. These citations confirm indeed that the skilled person would know that in the case of GP laundry compositions the acid form of the peroxyacid prevailing at lower pH is in general much more effective in providing sanitisation than its anionic form prevailing under alkaline conditions […]. Moreover, document D18 explicitly recognises that there is a necessity of “potentiating” the sanitising activity of the peroxyacid anion in the alkaline wash baths […], thereby implicitly confirming the existence of difficulties in achieving good sanitisation under the alkaline conditions required for peroxyacid generation and good bleaching.
[2.2.3] Hence, the skilled reader of the whole patent disclosure is correctly reminded of the existing common general knowledge as to the fact that the GP laundry compositions of the prior art containing a carbonate source that produce highly alkaline wash baths and result in good bleaching normally do not provide satisfactory sanitisation. Accordingly, the skilled person can only reasonably interpret the aimed “efficient antimicrobial performance and/or sanitisation” indicated in paragraph [0009] of the patent-in-suit as a level of sanitisation superior to that expected for the GP laundry compositions containing a carbonate source that produce highly alkaline wash baths. Hereinafter the aimed combination of good levels of sanitisation and bleaching is also indicated as efficient sanitisation with good bleaching.
[2.3] The [opponents] have considered reasonable to assess inventive step starting from any of the two examples of departure […].
In view of the technical problem indicated in the patent-in-suit and discussed above, and considering that:
- both these prior art examples are GP laundry compositions containing a carbonate source and providing good cleaning […] and
- that the subject-matter of claim 1 of the patent-in-suit only differs from example 1A of document D1 as well as from example 1 of document D3 in that claim 1 requires a 1% by weight mixture of the patented laundry composition in demineralised water to have a pH of from 8.8 to 9.9,
the Board concurs with the [opponents] that it was reasonable for a skilled person to start from one or the other of these prior art examples.
[2.4] In a first line of reasoning in view of A 56, the [opponents] have combined each of the two examples of departure with the document D9 or with document D11.
In particular, they have considered that, in the absence of any experimental data demonstrating the superior sanitising effect of the patented composition in comparison to those observable in one or the other of the two examples of departure, the statement as to the efficient sanitisation in paragraphs [0008] and [0009] of the patent-in-suit would just be an allegation of an improvement that, as indicated e.g. in the decision of the Boards of Appeal T 1392/04 [20], required experimental evidence in order to be considered for the assessment of inventive step.
Since it would not be credible that the patented GP laundry compositions provided a level of sanitisation superior to that of the prior art of departure, the subject-matter of claim 1 of the patent-in-suit represented just an optimization of the prior art, optimization that was rendered obvious by the combination of one or the other of the two examples of departure with document D9 or D11.
[2.4.1] The Board notes however that the referred passage in T 1392/04 only relates to the credibility of a statement of the patent proprietor that the patented subject-matter would provide an improvement of “some particular property of the closest prior art” (emphasis added by this Board), i.e. an improvement of one of the properties already disclosed in the prior art (such as those indicated at point [13] of the Reasons in this decision).
[2.4.2] The content of T 1392/04 [20] is, thus, not similar to the issue raised by the present case wherein, as argued by the patent proprietor, the skilled reader of the relevant prior art document would not know if the examples of departure also provide an efficient sanitisation or not.
Indeed, the absence of specific information in documents D1 or D3 as to the (final) pH of the wash baths produced when using one or the other of the two examples of departure, and the fact that it is not even possible to presume that these examples produce a 1% by weight wash bath with a pH in the range of 8.8 to 9.9 (and, thus, necessarily obtain the aimed combination of efficient sanitisation with good bleaching) has not been disputed by the [opponent].
It is also undisputed that, whereas document D1 does not mention at all disinfection or any other expression related to sanitisation, document D3 only contains a single reference at page 8, lines 41-42, as to the fact that the optional ingredient “oxygen bleach” of the laundry compositions disclosed therein can “provide a multitude of benefits such as bleaching of stains, deodorization as well as disinfectancy”.
The Board concurs with the [patent proprietor] that this passage is only a vague general statement, insufficient at justifying any reasonable prediction of the skilled reader of document D3 as to whether the specific composition of e.g. example 1, based on the specific peroxyacid bleach produced by the presence therein of percarbonate, would also provide some sanitisation, and even less the aimed effective sanitisation.
Accordingly, and in the absence of any evidence to the contrary, the Board has no reason for rejecting the argument of the [patent proprietor] that no combination of efficient sanitisation with good cleaning is disclosed to be present or to be predictable in any of the two examples of departure.
[2.4.3] Thus, the Board finds that no comparative experimental evidence is required for concluding that the subject-matter of claim 1 of the patent-in-suit solves vis-à-vis each of the two examples of departure the same technical problem mentioned in the patent-in-suit, i.e. that of providing GP laundry compositions capable of producing in combination efficient sanitisation and good bleaching (see above point [2.2.3]).
[2.4.4] The Board concludes therefore that the [opponents’] first line of reasoning resumed above at point [2.4] is not convincing already because it fails to correctly identify the technical problem solved.
The Board then also dismissed the opponent’s second line of reasoning and came to the conclusion that claim 1 involved an inventive step.
To download the whole decision, click here.
The file wrapper can be found here.
0 comments:
Post a Comment