T 1077/10 – Seamless

Both the patent proprietor and the opponent filed an appeal against the decision of the Opposition Division to maintain the patent in amended form.

Claim 1 as granted read:

Glove (1 ), in particular a pilot’s glove, having a lining (2) comprising at least one outer layer (3) made up of several material blanks (4) with a glove outer surface, which outer layer (3) of the lining (2) has no joining point at least on a volar zone (20) and preferably a distal zone (18) in the fingertip region (17) of one or more glove finger(s) (12 to 16), characterised in that the material blanks (4) are made up of at least an inner hand part (7), a top hand part (8), several finger side parts (9) and optionally a thumb part (11) and the inner hand part (7) is joined to the other material blanks (4) to form the at least one glove finger (12 to 16) along an individual, continuously extending join line (5).

In the following passage the Board discusses the novelty of this claim:

*** Translation of the German original ***

[1.1] D3 discloses a glove (1) having a lining comprising at least one outer layer made up of several material blanks (6,7,8) with a glove outer surface (see the figures), which outer layer of the lining has no joining point at least on a volar zone and preferably a distal zone in the fingertip region of one or more glove fingers (at least the middle and the ring finger; see figures and p. 3, l. 24-25), wherein the material blanks (6,7,8) are made up of at least an inner hand part (4,6), a top hand part (3,7), several finger side parts (8) and the inner hand part (6) is joined to the other material blanks (7,8) to form the at least one glove finger (2) along an individual, continuously extending join line (9,10) (see the figures).

[1.2] The patent proprietor argued that the expression “continuously extending join line” (“kontinuierliche Verbindungslinie”) had a functional meaning insofar as the connection along the line was continuous.

The Board does not see any reason requiring this feature to be interpreted in a functional way. The patent discloses in its paragraph [0028] that seams may continuously join two material blanks along a join line. Thus the seams form a join line that is to be considered as continuously extending if it joins the inner hand part and the further material blanks without interruption. Thus the feature “continuously extending join line” is to be understood as a structural feature of claim 1 and – contrary to the opinion of the patent proprietor – not as a functional feature. Figure 3 of D3, where the course (Verlauf) of the seam 9,10 joins the inner hand part 6 and the further material blanks 7,8 without interruption, precisely discloses such a join line. 

[1.3] The patent proprietor further argued that the extraction (Heranziehung) of features from figures of the state of the art was not suitable in the present case to challenge the novelty of claimed subject-matter. It invoked decisions T 896/92, T 241/88, T 204/83, T 161/82, and T 272/92.

However, the figures of D3 contain a clear and unambiguous disclosure of several claimed features, in particular the course of the join line and the form (Ausbildung) of the material sheets in the fingertip region, at least as far as these features are explicitly mentioned in the description, e.g. on page 3, lines 24-25: “The palmar 6, dorsal 7 and lateral 8 panels are sewn in a way that the extremity of each finger is without seams.” Thus D3 discloses a course of the seams, which is depicted in the figures and which is such that there the purpose of having no seams in the fingertip region is achieved. The decisions invoked by the patent proprietor all concern the situation where the content of the disclosure was to be assessed on the basis of the figures only, which is not the case here.

[1.4] As D3 discloses all the features of claim 1, the subject-matter of this claim is not novel (A 54).

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The file wrapper can be found here.