T 408/12 – Yes We Can

This is an examination appeal. Claim 1 on file read:

Pressurized metal can, such as an aerosol can, having a bottom comprising a panel connected with a panel radius R4 to a countersink having a panel wall angle A2, a foot wall angle A1, and a countersink radius R3, which countersink is connected to a foot having a foot radius R2 and the foot is connected to a can body wall, which panel has a substantially non-concave form, wherein:

• the foot wall angle A1 is in the range of about 0° to 45°;
• the panel wall angle A2 is in the range of about 0° - 45°;
• the foot radius R2 is in the range of about 0.5 to 1,5 mm;
• the countersink radius R3 is in the range of about 0,5 to 1,5 mm;
• the panel radius R4 is in the range of about 1,0 to 1,5 mm;
• the unit depth H1 is in the range of about 5 - 15 mm;
• the panel depth H2 is in the range of about 2 - 10 mm; and
• the center panel radius R5 is larger than about 20 mm

wherein the can has a diameter in the range of about 20 - 80 mm, a bottom wall thickness in the range of about 0,2 - 0,7 mm, and having a pressure resistance up to about 15 bar.

The Board found this claim to lack inventive step over D1:

Consideration of D1 as prior art in the examination of inventive step

[4.1] The appellant objected to D1 being considered as prior art in connection with the can of claim 1 and to the understanding by the Board of the disclosure given for the bottom according to the first embodiment.

[4.2] Its objection concerning the consideration of D1 as prior art is based on the argument that the can according to claim 1 and the cans disclosed in D1 belong to substantially different technical fields due to differences concerning their capacities to sustain loads and their intended uses.

[4.3] The Board cannot follow these arguments for the following reasons:

Differences concerning the intended uses of the cans according to claim 1 and D1 cannot be taken into account since in claim 1 the “aerosol can” is not an obligatory feature but is referred to only as an example; D1 only refers to a pressurized container of the conventional “beer can” type […].

The argument concerning different capacities of the cans according to claim 1 and D1 are based on the assumption that the can according to claim 1 has to be able to withstand high internal pressures […] whereas the cans according to D1 need to withstand only external forces.

The Board is of the opinion as indicated during the oral proceedings (OPs), that in both cases the cans have to withstand internal pressures as well as external forces since these are loads normally to be carried by pressurized cans. In this respect besides the pressure referred to in the application in suit […] its axial load resistance with respect to a vertical load is also referred to […]. In D1 it is stated that the cans have to sustain compressive forces […]; all cans configured according to figure 2 (i.e. cans according to the first embodiment as referred to above) have to withstand axial loads […].

As indicated by the Board during the OPs it also needs to be taken into consideration that for cans according to claim 1 as well as cans according to D1 the aim is for an improved load carrying capacity via the manner in which the bottom is designed […]. Moreover, as likewise indicated by the Board during the OPs, it is to be expected that since the can as defined by claim 1 of the application in suit and the one according to the first embodiment of D1 have the same structure as can be derived from the following […] they also have corresponding load carrying capacities with respect to external and internal loads.

The Board thus considers D1 as prior art to be considered in relation to the can according to claim 1.

[4.4] Having been informed during the OPs that D1 is not considered as lying in a technical field which is substantially different from that of the can of the application is suit and that therefore the first embodiment of D1 can be considered as prior art in the examination of inventive step, the appellant argued that the bead 60, provided on the bottom of the can, cannot be understood as constituting a countersink as defined in claim 1.

This objection was essentially based on three arguments.

[4.4.1] According to the first argument the bead […] is only optionally provided. In the normal situation in which no such a bead is provided (the second embodiment) the countersink is constituted by a foot wall 32, a panel wall 36 and a section joining these two walls which has a radius 64. These elements together constitute the countersink and do not lose this capacity merely by adding an optional element to the bottom at the radius 64 such as the bead.

[4.4.2] According to the second argument even if a bead is provided at the container bottom shown in figure 2 it cannot be considered as constituting a countersink as defined by claim 1, since such a bead is not connected to the panel via a panel radius and does not have a panel wall angle, nor a foot wall angle, nor a countersink radius. Moreover, since according to D1 “the bead 60 subtends an arc 62 of greater than 100° and preferably on the order of 180°” […] it has to be assumed that for the preferred angle of 180° the bead is non-existent as it is flattened due to this large angle. In that case it lacks a countersink radius. The appellant referred in this respect also to the criticality of the values for these parameters of the countersink with respect to the pressure resistance as explained in D3.

[4.4.3] According to the third argument the countersink according to claim 1 significantly contributes to the bottom having the defined pressure resistance of up to about 15 bar whereas for the optional bead according to the first embodiment of D1 no such effect is disclosed. This becomes even more evident considering the second and third embodiment of D1, for which it is apparent that a bead is not foreseen, not even optionally.

[4.5] Concerning these arguments the Board is of the following opinion as expressed during the OPs.

[4.5.1] As referred to above D1 discloses clearly a first and a second embodiment in connection with figure 2 and a third one according to figure 8: each of these three embodiments has its own particular structure of the bottom for the can. In the first embodiment the bottom comprises a bead which is not the case for the second or the third embodiment. Despite the optional nature of the bead the disclosure of the first embodiment needs to be taken into consideration independently of the second and the third embodiment, the bottoms of which do not comprise a bead.

[4.5.2] With respect to the second argument it needs to be taken into account that as defined by claim 4 of the application in suit and figure 2, the claimed bottom can comprise a panel outer ring having a length L1 and a panel outer ring slope A3 in the range of about 2 - 35°. […]. The appellant failed to give a convincing reason why an element connected outwardly of the (inner) substantially non-concave panel, namely the outer ring, is an element different from the third frustoconical portion 36 disclosed in the first embodiment of D1 […] which is arranged in exactly the same manner with respect to the (inner) panel 34 of substantially non-concave form […].

Since, in view of the Board, the panel outer ring 36 of the first embodiment of D1 is to be considered as part of the panel it cannot, corresponding to the definitions given in claim 1, be considered part of the countersink. Consequently, the latter is formed by the bead 60. Rounded portions (necessary due to manufacturing / tooling constraints) connect this bead / countersink to the foot on the one hand and the panel wall given by the panel outer ring (as defined by claim 4) on the other. This countersink has a countersink radius R3 having a value lying within the range of about 0.5 to 1.5 mm as defined by claim 1 […].

This applies also taking the argument of the appellant into account that “the bead 60 subtends an arc 62 of greater than 100° and preferably on the order of 180°”. For the Board, this statement of D1 cannot be understood as indicating that for larger angles of extension of the bead the latter loses its shape of a section of a circle. For 180° it simply means that the shape of the bead is half a circle, just as shown in figure 2 by the interrupted lines.

[4.5.3] Concerning the third argument that the countersink according to claim 1 significantly contributes to the bottom having the defined pressure resistance of up to about 15 bar, whereas for the optional bead according to the first embodiment of D1 no such effect is disclosed: no convincing reason has been given why the claimed countersink on the one hand and the bead of the first embodiment on the other would be different. They have – qualitatively – the same structure and are arranged in the same manner in the bottom, they therefore should have the same effect with respect to the pressure resistance of the can. This is all the more so since the influence of the bead on the pressure resistance is explicitly referred to in D1 […]. Consideration of the second and third embodiment cannot alter this assessment since admittedly according to these embodiments a bead is not even optionally foreseen.

[4.5.4] The explanations given in D3 with respect to the criticality of the countersink on the one hand and the nature of the bead of the first embodiment on the other hand, cannot alter the above assessment either since they start from the premise that the bead cannot be equated with the countersink of claim 1, to which premise the Board, however, cannot subscribe.

[4.6] To complete the analysis of the disclosure of the first embodiment of D1, it discloses further the following remaining parameters of claim 1, starting form the center of the bottom

• the center panel radius
• the panel radius between the panel outer ring 36 and the bead 60
• the countersink radius of the bead 60 (see also point [4.5.2] and [7.3.2] below)
• the foot radius at bottom bead 28
• the panel wall angle between the vertical and the inward wall of bead 60
• the panel wall angle between the vertical and the outward wall of bead 60
• the unit depth and the panel depth.

That these parameters are present in this embodiment is corroborated by D3, annex 2, where this first embodiment is called the “figure 2A bottom”.

Consideration of the can according to the first embodiment of D1 as closest prior art

[5] The can according to the first embodiment […] with its bottom having a bead 60 is the one having more features in common with the can of claim 1 than the second or third embodiment.

As pointed out in point 4.3 above, it also serves the same purpose: withstanding internal and external loads. This embodiment satisfies thus the conditions which, in line with the well-established approach followed by the boards of appeal, have to be considered in establishing the closest prior art for the examination of inventive step.

In this respect the argument of the appellant that according to the disclosure of D1 the third embodiment has further advantages as compared to the second embodiment need not be considered since even if it holds true it is based on a comparison between the embodiments disclosed in D1 and not on one in which each of these embodiments is compared with the can defined by claim 1.

It is in any case clear that a comparison of the can according to the third embodiment […] shows less agreement with the subject-matter of claim 1 than it is the case for the first embodiment […].

Features distinguishing the can of claim 1 from the one according to the first embodiment of D1

[6.1] As indicated above […] the can according to the first embodiment of D1 comprises, in accordance with the can defined by claim 1, a bottom having a panel, a countersink in the form of bead 60 and a foot, these elements having together the same parameters as in claim 1.

[6.2] Consequently, in line with the “ADDITIONAL COMMENTS” of the decision under appeal the Board is […] of the opinion that the can according to claim 1 is distinguished from the one according to the first embodiment by the value ranges defined for the parameters associated with the elements constituting the bottom.

[6.3] According to these value ranges

• the foot wall angle A1 is in the range of about 0° to 45°;
• the panel wall angle A2 is in the range of about 0° - 45°;
• the foot radius R2 is in the range of about 0.5 to 1,5 mm;
• the countersink radius R3 is in the range of about 0,5 to 1,5 mm;
• the panel radius R4 is in the range of about 1,0 to 1,5 mm;
• the unit depth H1 is in the range of about 5 - 15 mm;
• the panel depth H2 is in the range of about 2 - 10 mm; and
• the center panel radius R5 is larger than about 20 mm
• wherein the can has a diameter in the range of about 20 - 80 mm, a bottom wall thickness in the range of about 0,2 - 0,7 mm, and having a pressure resistance up to about 15 bar.

Obviousness

[7.1] The effect of the distinguishing features can thus be seen in the provision of concrete numerical values for the parameters defining the bottom.

[7.2] The problem which can be formulated from this effect would be to provide numerical values for the parameters disclosed for the bottom of the can according to the first embodiment, i.e. how to reduce this can bottom to practice.

[7.3] Examining whether the solution to this problem as provided by the can as defined by claim 1 is obvious means: will the skilled person arrive at values falling in these ranges when reducing the can according to the first embodiment into practice. In this respect the disclosure of D1 is of concern.

[7.3.1] Concerning the disclosure given to a skilled person by the first embodiment of D1, with respect to numerical values for the parameters in question, the following distinction was indicated by the Board during the OPs: in the examination of novelty, the disclosure of D1 to be considered is limited to what is directly and unambiguously disclosed in the document; the situation is different concerning the disclosure which is to be considered in the examination of inventive step. In the latter case the disclosure needs to be evaluated taking into account not only the direct and unambiguous disclosure, but also quantitative values the skilled person would derive for the relevant parameters from figure 2 and the associated description in an attempt to reduce the can according to the first embodiment into practice.

[7.3.2] Following this approach, referred to already in the impugned decision […], the skilled person would arrive at the values for the parameters which correspond between claim 1 and the description and figure 2 […]. Figure 2 is considered as a schematic section of the lower part of the can concerned showing the elements constituting the bottom and thus also their defining parameters (angles, radiuses and heights) in correct proportion:

• foot wall angle (between the outer and wall of bead 60 and the vertical): approximately 10° (thus in the range given for A1 of about 0° to 45°);
• panel wall angle (between the inward wall of bead 60 and the vertical): approximately 15° (thus in the range given for A2 of about 0° - 45°);
• foot radius: in the range for R2 of about 0.5 to 1,5 mm;
• countersink (bead) radius 60: in the range of 0.030 to 0.187 inch (0,762 to 4,75 mm) as given in column 7, lines 39 - 42 of D1 (thus with values in the range for R3 of about 0,5 to 1,5 mm);
• panel radius: in the range for R4 of about 1,0 to 1,5 mm;
• unit depth: in the range for H1 of about 5 - 15 mm;
• panel depth: in the range for H2 of about 2 - 10 mm; and
• center panel radius: corresponding to R5 larger than about 20 mm.

[7.3.3] Concerning the above values being derivable from the first embodiment of D1 it has not been disputed that the value ranges given for the radii come in any case within regular design practice taking e.g. into account that certain minimal values for the radii have to be observed due to manufacturing requirements / tooling constraints. Concerning the height dimensions H1 and H2 likewise it has not been disputed that the values derivable from D1 for the first embodiment lie within the value ranges defined in claim 1.

[7.3.4] The can according to the first embodiment furthermore has, since it is of the conventional beer can type […], a diameter in the range as defined by claim 1 of about 20 - 80 mm. For the bottom wall thickness a value of about 0.0145 inch (0,37 mm) is referred to in D1 […] which lies in the range defined in claim 1 of about 0,2 - 0,7 mm.

[7.3.5] Due to the correspondence between the bottom as defined by claim 1 and the one according to the first embodiment of D1 as discussed above it must be that the can according to D1 has a pressure resistance which is similar to the one referred to in claim 1 as “up to about 15 bar”, otherwise the claimed can would not fulfil that condition over the whole extent of the claimed ranges.

[7.4] Since it is apparent that for the can according to the first embodiment the parameter values obtainable from D1 by its reduction to practice are not singular ones but vary accordingly around the indicted values and since it has neither been argued nor proven that the value ranges defined in claim 1 lead – in combination – to another particular effect, the can according to claim 1 does not involve an inventive step over the one of the first embodiment of D1 (A 56).

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