T 0023/05 06-09-2007

1. Main request

The features of the preamble of claim 1 are disclosed in D11 and this is also not a matter of dispute between the parties. As regards the characterizing portion, the following features of the alternatives therein are relevant:

(a) the strips are shorter than the bristles,

(b) an undulating profile of longer bristles and shorter strips.

In order to determine whether the fins are shorter than the bristles in D11, the term "length" as defined in the preamble of claim 1 has to be given an interpretation, because there is no disclosure in the patent itself which defines the term "length" more precisely. In this regard however it is noted that claim 3 further allows the "length" of the strips to be something which can vary "across their width". Thus, in as far as can be ascertained from the patent, the length of the strips may be measured anywhere across their width in determining whether the condition of "shorter" in feature (a) above is fulfilled. It is also noted that the large range of possibilities of strip shape defined in paragraph [0007] of the patent, according to which the strips "may taper along their length, being either wider or narrower at their end remote from the bristle face than at their base at the bristle face", together with the indication in paragraph [0015] that the "ends of the strips remote from the bristle face may be rounded, or may terminate in bulbous ends…" supports this conclusion about where length may be measured. In this respect, no support can be found for the respondent's limited interpretation that a "length" requires the presence of specifically identifiable end surfaces at which one or more lengths can be measured, or, in the absence of such surfaces, that only the highest point of the strip element should be used. Indeed, in the only embodiment shown in Figure 3 of the patent, it is observed that one of the end surfaces of the strips has the same length as the bristles adjacent thereto, rather than being "longer or shorter" as claimed.

Taking initially the first, broader interpretation of the term "length", which the Board finds to be within the meaning of claim 1 due not least to the definition of varying length given in claim 3, it is then not sufficient only to consider the absolute highest point of the fins in D11, but instead the length of the fins at locations "across their width". Thus in D11, even if arguendo the fins had equal length to the bristles at the fin apex, the length of the fins immediately adjacent the apex would necessarily lie below the bristles. Therefore, in this regard, feature (a) is disclosed in D11.

An undulating profile according to feature (b), taking the broad interpretation of "length", is thus present since the bristle length compared to the fin length measured on either side of the apex, yet still somewhat remote from the bristles, provides such a profile. In regard to the respondent's arguments about feature (b), it is first noted by the Board that there is no indication in the patent as to the amount of length difference between the strips and bristles which is required to provide an "undulating" profile. The Board therefore finds that it is reasonable to interpret the claim in the sense that any readily perceivable amount would fulfil this definition. The proprietor's argument that the undulating profile should be considered on a macro scale and not a micro scale is however accepted by the Board, but this does not change the fact that a perceivable height difference is disclosed in D11 when considering the broad interpretation of the term "length" and positions on either side of the fin apex which is present also on a macro scale.

Even if a more limited interpretation were to be used for the term "length", whereby the measurement of the fins in D11 is taken from the highest point thereof to the base, Figure 2 depicts the length to be discernibly shorter than the bristles, albeit by a small amount. No explicit written disclosure of the relative lengths of the fins and bristles is however present in D11 and thus the Board considers it suitable to determine whether the information depicted in D11 is an "unambiguous" disclosure of the claimed feature. Such a consideration would also be in line with the findings in T 204/83 (see item 4) as cited by the respondent. In this regard it is first observed that not only one row of fins, but each of the three rows of fins is depicted as being shorter than each of the three rows of adjacent bristles. This is already a strong indication that the size relationship shown is not merely a chance occurrence, but more of a systematic representation of the feature in question, albeit appearing in one drawing rather than a series of drawings as discussed in T 204/83. However, in the present case, the Board does not need to decide whether Figure 2 by itself is sufficient to provide an unambiguous disclosure of the feature, since the further information contained in D11 regarding the massaging effect of the fins (see D11a, page 3, lines 1 to 11) supports the depicted size difference in a functional manner. Such a consideration is also in line with the findings in decision T 748/91 for example (see item 2.1.1). The function of massaging would require a higher pressure to be put on the brush head to cause a noticeable massaging effect and likewise a brushing effect of the bristles should normally be maintained without undue hindrance from other elements at a lower pressure. This logically means that the fins should be slightly shorter than the bristles in order to achieve both functions in a desired manner. Feature (a) as mentioned above is therefore found to be disclosed in D11 also on a more limited interpretation of the term "length".

In accordance with the considerations made above concerning feature (b), an undulating profile is disclosed in D11 when using the more limited interpretation of the term "length", since the difference in height between the strips and the bristles is not only pictorially represented on a macro scale but also functionally supported in this respect.

Consequently, irrespective of which interpretation of the term "length" is used, the Board finds that D11 discloses all the features of claim 1. The subject matter of claim 1 is therefore not new, contrary to the requirement of Article 54 EPC. The main request is thus not allowable.

2. First auxiliary request

The feature introduced into claim 1 by way of the first auxiliary request contains the terminology "strips are made of softer plastic material than the bristles…". This terminology is not disclosed explicitly in the application as filed, and the presence of an explicit disclosure is not in dispute. The respondent however asserts that it is implicitly understood that the term "softer" is being used in relation to the bristles on the head of the toothbrush of claim 1 and that the description can only reasonably be understood in that manner.

In the paragraph of the description concerned, the following is stated:

"The strips may be made of the materials from which conventional bristle filaments are made, for example nylon or other plastics materials known to those in the art. Alternatively the strips may be made of softer plastics or elastomeric materials, e.g. synthetic rubbers."

The Board finds that the only interpretation possible from this disclosure is that the term "softer" is used in relation to the choice of strip material compared to materials of "conventional" bristle filaments, and not compared to the material of the bristles actually present on the brush head in claim 1. The particular interpretation made of this section by the respondent thus finds no support. Indeed, the bristles on the brush head defined in claim 1 may be of any material whatsoever, including materials far harder than "conventional" bristle material. Also, nothing in the patent implies unambiguously that "conventional" bristles are the bristles used in the toothbrush head. It is also noted that paragraph [0017] states "The remainder of the toothbrush, and conventional bristles if included…", which confirms that any type of bristle material can be used in the head of claim 1.

As a result of this amendment, the subject matter of the patent extends beyond the content of the filed application, contrary to Article 123(2) EPC and the first auxiliary request is thus not allowable.

3. Auxiliary request 1a

The introduced feature includes the terminology "the strips are made of a softer plastics material than the material from which conventional bristle filaments are made…". This defines a relative softness in comparison to "conventional" bristle material. The term "conventional" however has no generally recognised meaning in the art and is entirely vague. This is evident already from the patent itself which in paragraph [0015] states that material of conventional filaments is for example "nylon or other plastics materials known to those in the art", which de facto implies a multiplicity of materials. The respondent's argument that BSI Standard 5757 presents nylon 6.6, 6.10 or 6.12 as the conventional bristle material is not convincing, since nowhere does the BSI standard define any of these materials as conventional; it furthermore mentions natural filaments which are used in toothbrushes. The BSI standard is also not the only standard available. Even if it were accepted that nylon should be regarded as the conventional filament material, which has not been proven by any supportive evidence, it would still be unclear which of the nylon types should be used and how its "softness" would be determined for comparison purposes.

The Board concludes that the subject matter of amended claim 1 is thus not clear, contrary to Article 84 EPC. Auxiliary request 1a is therefore not allowable.

4. Second auxiliary request and auxiliary request 2a

These requests contain the same terminology as present in the first auxiliary request and auxiliary request 1a respectively, and thus are also not allowable for the same reasons as apply to those requests.

5. Third auxiliary request

5.1 Compared to claim 1 of the main request, claim 1 of this request contains a first limitation that "the strips are made of an elastomeric material". The claim also contains a second limitation that the strips must be "shorter than the bristles, so as to present an undulating profile of longer bristles and shorter strips", this second limitation being as a result of the wording "longer or" and "or vice versa" having been deleted. However, in view of the conclusions reached on novelty in regard to the main request, it has already been decided that the second limitation is disclosed in D11, such that only the first limitation needs to be considered for assessing novelty over D11.

Albeit that the term "elastomeric material" seems to have no precise definition, the Board finds that a person skilled in the art of toothbrushes would necessarily interpret the term "elastomeric material", as used in the patent, to imply that the material itself, and not merely the element constituted by the material, always has the characteristic of elastic return after deformation. Contrary to the appellant's argument that the respondent had given its own different definition of "elastomeric", the Board however agrees with the respondent that the elastomeric nature of the material itself is at issue, as this is indeed what is defined in claim 1. It is thus irrelevant to consider whether the strips act in an elastomeric manner or whether the strips might exhibit other behavioural characteristics which could be attributable to strips made of elastomeric materials.

The only material disclosed in D11 for the fins is expressed as being a "flexible synthetic resin" (see D11a, page 3, line 27). This expression however includes both elastomeric and non-elastomeric materials and cannot be used to anticipate the more limited expression "elastomeric material" used claim 1, since it is well established jurisprudence of the EPO Boards of Appeal that disclosure of a broad term in the prior art cannot be used to anticipate a more narrowly defined feature of a claim.

The respondent's further submission that a "squeegee" effect must also be provided by such a material is not considered relevant by the Board, as no such effect is mentioned anywhere in the patent, nor is it evident that such an effect necessarily occurs in all elastomeric material strips which might be covered by claim 1.

The subject matter of claim 1 is thus found to be novel over the disclosure in D11 in view of this single feature.

5.2 The objective technical problem to be solved when starting from D11 in view of the elastomeric material defined in claim 1, according to the respondent, is the provision of a different cleaning effect, namely wiping.

The Board however does not regard this as being an "objective" technical problem starting from D11, since the fins in D11 also perform wiping, even if not explicitly stated. This is because no technical meaning of "wiping" is explained or implicit from the patent which could differentiate it from the action of the fins in D11. In this regard, it is notable that the shape and dimensions of the strips are not even defined in claim 1, so that any alleged differences between the strips shown in the patent drawings and the fins shown in D11 lack relevance to the issue of the objective problem to be solved; the strips of claim 1 could have exactly the same shape and dimensions as the fins in D11.

The Board therefore finds that the objective technical problem starting from D11 is essentially as submitted by the appellant, namely the selection of a suitable material for the fins of D11, allowing them to fulfil their described function (D11a, page 3, lines 1 to 11) of both massaging the gums and removing foreign matter stuck between the teeth.

The skilled person searching for a suitable material for the fins of D11 is taught by D10 (see e.g. page 1, lines 25 to 40 and page 2, lines 68 to 71) that these two functions are performed by using elastomeric material strips in the form of rubber projecting elements (termed "bristles" in D10) affixed to the toothbrush head. The use of rubber material for the fins of D11 is therefore regarded as obvious in view of the problem to be solved.

Although it was argued by the respondent that a massaging effect was merely secondary in D11 and the hard nature of the fins to act as toothpicks would lead the skilled person away from using elastomeric materials of e.g. D10, the respondent's view is not supported by D11 since page 1 at lines 27 to 33 discloses the removal of foreign matter only as being "in addition" to avoiding injury to gums. More importantly, D10 specifically discloses that its rubber elements are indeed suitable for both the required functions stated in D11.

The respondent's further argument that D10 would teach away from using strips due to the shape of the elastomeric elements in D10 as cones/pyramids is also found to be unconvincing. Firstly, nothing in the claim defines the shape of the strips in a way which excludes strips with larger base dimensions than top end dimensions. Secondly, it is well known to a skilled person that rubber can be obtained in different hardnesses to perform different purposes, such as where a more stable structure is required with limited dimensions. Thus the selection of the actual type of rubber for the particular circumstances of D11 does not require inventive skill.

The subject matter of claim 1 thus lacks an inventive step contrary to the requirements of Article 56 EPC and the third auxiliary request is consequently not allowable.

6. Fourth auxiliary request

6.1 The added feature compared to claim 1 of the third auxiliary request is a range of relative thickness to width values with a maximum at "0.2". Although D11 discloses "thin, flat" fins (see D11a page 3, lines 26 to 28) and the Figures depict an aspect ratio (at least at the base of the fins) which is seemingly in the region of the defined range of "0.2 or less", the Board concludes that no exact dimensions can be scaled from the drawings, such that this feature must be considered novel with respect to D11.

The value "0.2 or less" as claimed is however not disclosed in the patent as having any particular advantage or as solving any particular problem. In fact, the description in paragraph [0007] states that the thickness merely "can be typically 0.2 or less…than the width of the strips". This, combined with the fact that claim 1 does not define any particular shape or minimum height requirements of the strips, does not allow the conclusion to be drawn that the strips as now defined have a wiping effect in some way different to D11 as a result of this particular aspect ratio. The appellant also did not provide any evidence that the range defined in claim 1 had any particular technical effect in conjunction with other features defined in claim 1 in a way which was not obvious in view of D11.

Thus the Board can only conclude that the selection of the relative thickness to width range of the strips in claim 1 does not distinguish the strips of the patent from the fins of D11 in a way that goes beyond being merely a choice of suitable fin dimension available to a skilled person when considering the requirement that the fins of D11 be thin and flat, in particular having regard to the very thin nature of the fins depicted in the Figures of D11.

The subject matter of claim 1 thus lacks an inventive step, contrary to the requirements of Article 56 EPC. The fourth auxiliary request is consequently not allowable.