T 0612/04 15-11-2007

1. Main request

The features in the characterising portion of claim 1 which define the rocking of the head state that "the head (is) able to rock within the frame about a number of axes, including axes aligned both in the width direction and the longitudinal direction".

In the application as filed, there is no expressis verbis basis for such features and the respondent has not disputed this. The application defines on the other hand a general capability of the head to perform a "rocking motion" relative to the frame (e.g. page 1, last paragraph) or the ability to "float" relative to the handle (e.g. page 1, penultimate paragraph). These passages are entirely general and so the skilled reader cannot deduce any specific axes about which rocking is able to occur, in particular not any longitudinal or width direction axes. The only further written disclosure concerning the axes about which the head is able to rock or float is included on page 4 (see first complete paragraph) of the application, which states that "The linking of the head to the extended portion in the above-described ways allows rocking of the head relative to the handle about a number of axes. Preferably the head is at least able to rock in the plane that contains the longitudinal axis of the handle." This latter paragraph however firstly refers to "the above-described ways", which concerns situations relating to head/frame connections with a diaphragm or splines, neither of which is defined in the claim and therefore which cannot be regarded as a general disclosure applicable to the whole application. Importantly however, this passage makes it clear that it is only "preferable" that a rocking in the plane containing the longitudinal axis of the handle is possible. It cannot therefore be assumed that rocking about any particular axes is present in any arbitrary head/frame structure. The ability to rock about particular axes will depend on various factors such as the dimensions of the gap and the formation of the material (e.g. its structure and dimensions at any particular location) which may be made so as to permit or prevent this. Rocking about specific axes will therefore only apply to certain head/frame structures.

The only disclosure that can be identified in the filed application as providing a basis for rocking about axes aligned in a longitudinal direction and a width direction (as defined in the claim) is given by the embodiments shown in the Figures (see in particular the rocking motions shown in Figures 1E, 1F, 2E and 2F). However, these embodiments disclose a specific combination and arrangement including further structural elements (see the description of these embodiments on page 5 and 6 of the description as filed). In particular, the embodiments all disclose that the gap defined in claim 1 is open on its lower side and closed on its upper side by a thin, flexible and resilient elastomeric "diaphragm" which allows the shown rocking movement of the head relative to the "frame" (see page 5, lines 26 to 29). Nothing in the description or Figures of these embodiments can be seen which would make a skilled person conclude that the specific rocking motions shown only in the Figures should somehow be applicable more generally to other toothbrush head/frame structures without diaphragms for example. Thus, without the inclusion of the features concerning at least the diaphragm in the claim, the Board concludes that the subject matter of claim 1 is an unallowable intermediate generalisation of the disclosure in the originally filed application.

Decision T 284/94 cited by the respondent cannot alter the Board's conclusion in this matter. The headnote of this decision states that an "amendment of a claim by the introduction of a technical feature taken in isolation from the description of a specific embodiment is not allowable under Article 123(2) EPC if it is not clear beyond any doubt for a skilled reader from the application documents as filed that the subject-matter of the claim thus amended provides a complete solution to a technical problem unambiguously recognisable from the application." In the present case, the skilled reader is presented with absolutely no information in the filed application as to the particular importance of the rocking about the specific axes defined in claim 1 in terms of these specific axes representing a complete technical solution.

T 157/90 and T 397/89 also do not alter the above conclusion, since these decisions merely confirm that generalisation of a disclosed feature, unless such is evident to a skilled person in the relevant context, is not allowable. In the present case, the Board concludes that there is no disclosure in the filed application which would make it evident for the skilled person that the generalisation of the features of the head/frame structure shown and described should provide more general applicability in some way.

Claim 1 is therefore not allowable (Article 100(c) EPC).

2. First auxiliary request

The amendment made with this request does not alter any of the conclusions reached with respect to the main request and the subject matter of claim 1 is therefore not allowable for the same reasons as apply to the subject matter of claim 1 of the main request. Since an amendment of a granted claim is involved, the subject matter of the claim fails to meet the requirements of Article 123(2) EPC.

3. Second auxiliary request

In this request, as in the main request, the axes about which rocking should occur are defined as axes including axes aligned…in…the longitudinal direction." However, the only embodiments showing a rocking movement about specific axes also disclose specifically (see Figures 1E, 1F, 2E and 2F) that the rocking about a longitudinal axis and about a width direction is rocking of the head only about an axis aligned with the frame of the toothbrush, rather than merely any undefined axis of the toothbrush on the handle for example. Indeed as explained by the respondent, when proceeding along the general axial extension of the toothbrush from the tip of the handle to the outer end of the frame, the axis running through the handle of the toothbrush, even if it were unidirectional, would be aligned differently to that through the frame. Due to the curvature of such handles, which as explained by the respondent occurs commonly in toothbrushes, the axis through the handle could even adopt a very slanted or even a curved orientation which would be extremely different to that of the frame supporting the head. Claim 1 however defines, in terms of the longitudinal direction, that rocking occurs about axes aligned with this direction but fails to define whether this direction concerns an axis of the handle or the frame. Merely because rocking about an axis aligned with the longitudinal direction of the frame is disclosed in Figures 1E and 2E, in no way implies that a rocking motion is possible about some other specific axis aligned with another axis of the handle. Indeed, rocking about any particular axis depends on the shape and structure of the gap and the particular dimensions at any location thereon of the diaphragm. The embodiments of Figures 1 and 2 disclose a specific structure, allowing, in as far as can be ascertained from the disclosure, rocking about axes aligned with the longitudinal direction of the frame.

The Board is not convinced by the respondent's argument that a toothbrush is generally understood in the art as having a single longitudinal axis or direction which would thereby obviate any need to define the longitudinal axis or direction of the frame of the toothbrush. The Board concludes on the contrary that whilst it is evident to a skilled person that the toothbrush has a general longitudinal extent, and whilst this may be generally understood to lie in the direction following line A-A shown in e.g. Fig. 1 of the filed application, such a line cannot be used to define an axis aligned with the longitudinal direction about which rocking occurs, since the line A-A is not representative of an axis having a particular direction but merely shows a line running along the toothbrush when seen in plan view, which is representative only of a vertical plane through line A-A. A longitudinal direction and axes aligned with same can only be ascertained when considering several views. In the present case, the other views depicted in Fig. 1C, 1E and 1F for example clearly show that the line A-A in Fig. 1A changes direction at the transition from the handle to the frame. Thus, rocking about axes aligned with the longitudinal direction as seen by the axis along the frame is entirely different to that of the handle, also in the embodiments shown. When curved handles and the like are used, which are also covered by the claim, even more axes are possible about which rocking should be able to occur according to the claim. However, in as far as rocking about specific axes is concerned, the application provides only a disclosure of a head able to rock about axes aligned with the longitudinal and width direction of the frame. Since the longitudinal axis of the frame is not included in claim 1 of the second auxiliary request, the subject matter thereof is an unallowable intermediate generalisation of the disclosure in the originally filed application contrary to the requirement of Article 123(2) EPC.

4. Third and fourth auxiliary requests

These requests are late-filed, since they were filed for the first time during the oral proceedings of 15 November 2007. Also, neither of the requests overcomes the objection existing under Article 123(2) EPC applicable to claim 1 of the second auxiliary request mentioned above. The Board therefore exercises its discretion not to admit either request into proceedings (see e.g. Article 10b(1) of the Rules of Procedure of the Boards of Appeal and e.g. T 397/01).