T 0485/09 17-11-2010

1. Claim 1 according to the single request (auxiliary request 4"): Inventive step - Article 56 EPC

1.1 The Board follows the respondent's argumentation in so far that D1 represents the closest prior art and that the subject-matter of claim 1 differs from the abrasive product known from D1 in that a space for grindings is obtained by the consecutive abrasive threads being placed at a distance from one another. In D1 the spaced threads are further coated so that space therebetween may not be provided.

1.2 Due to the presence of such a space grindings produced during the abrasive work may be accommodated and eventually led away, improving thereby the abrasive capacity of the abrasive product, see also [0005] of the patent in suit. The objective technical problem to be solved can be seen therefore as to modify the abrasive product known from Dl in order to increase its abrasive capacity.

1.3 The respondent argued that space for grindings is known from D8, wherein it is stated that due to the large number of open spaces present in the abrasive product described in said document a rapid elimination of the detritus during sanding or polishing is provided, see column 1, lines 43 to 46 of D8. The person skilled in the art in order to solve the above-mentioned problem would then apply the above-mentioned teaching of D8 to the abrasive product known from D1 and would arrive at the subject-matter of claim 1 without exercising an inventive activity.

1.4 The question to be decided is therefore whether the skilled person would apply the teaching of D8 to the product known from D1 in order to solve the above mentioned problem and if he had done so whether he would have arrived at the subject-matter of claim 1 without exercising an inventive step.

1.5 D1 relates to stitch-bonded non-woven fabrics which are suitable for reinforcing the backings of coated abrasives. In column 1, lines 7 to 45 of D1 reference is made to the problems connected with the use of woven cloth as a backing for coated abrasive articles due to the repeated curvature in the yarns and the knuckles at the crossover points in the yarn. A solution to this problem is given in D1 by using stitch-bonded fabrics having arrays of substantially coplanar and co-parallel textile yarns. Fabrics having such yarn arrays may be finished in a variety of ways to make suitable backings for coated abrasives. These backings in turn may be coated with any of the variety of maker adhesives, abrasive grits, and sizer adhesives, well known in the art, see column 7, lines 23 to 28. According to example 1 of D1 a fabric having yarns with the identification number 1 of table 1 of D1 is used. The fabric is saturated with a resin and acrylic latex composition to prepare it for frontfilling, backfilling, and coating with maker grain and size coat, see column 7, lines 36 to 41. The size coat is applied using usual techniques and is dried and cured by heating and the coated abrasive is then ready to be converted into belts or discs, see column 8, line 65 to column 9, line 6. Due to the presence of the size coat as an outer layer of the coated abrasive material said material has a smooth outer surface, i.e. a surface without any intentionally provided slots or empty spaces which could be capable of collecting grindings. Moreover, in case of undesirable surface roughness apparent on the finished fabric after it has undergone frontfilling and backfilling a calendaring step is proposed in example 2, see column 10, lines 24 to 28. This teaches the skilled person to try to provide a smooth outer surface of each coating layer applied to the fabric.

1.6 As stated above, Dl perceives uneven or irregular surfaces as undesirable. The skilled person would on the basis of Dl thus have been motivated to design surfaces for the coated fabrics and accordingly also for abrasive product to be as regular and as even as possible.

1.7 On the other hand, D8 discloses a flexible abrasive product comprising a base of an open mesh, woven fabric, both the warp and filling yarns forming said fabric being continuous filament yarns and having a coating thereon of a flexible, presizing material, said coating securing said yarns together at the points of interlacing and maintaining the respective warp and filling yarns substantially parallel, a coating of hardened bonding adhesive over the precoated yarns, and a layer of abrasive granules held on said yarns by said adhesive, see claim 1. Accordingly, D8 teaches the use of a woven fabric as reinforcing backing of coated abrasives, whereby said fabric that corresponds to those fabrics acknowledged in Dl as prior art has the deficiencies mentioned above. Thus, the skilled person starting from Dl would have found a disclosure in D8 which would have meant returning to those types of fabrics which Dl wanted to improve upon. A combination of Dl and D8 so as to arrive at the claimed invention would thus have gone against the teaching of D1.

1.8 Therefore, according to the Board's persuasion the skilled person would not have combined Dl and D8.

1.9 Moreover, had the skilled person considered the teaching of D8, he would have arrived at a woven backing for the abrasive product. D8 attaches importance to the points of interlacing of warp and filling yarns, recommends gauze or leno weave, simple plane or twill weave, and warns against base fabrics which are different on opposite sides, see column 2, lines 52 to 54. If the teaching of D8 would have been considered by the skilled person, then the skilled person would have taken on board the fabric structure for the base fabric of D8 and avoided fabric structures which are different on opposite sides. The skilled person would consequently have avoided adopting the fabric structure of Dl so as to use thereon the remainder of the teaching of D8.

1.10 Therefore, even if the skilled person had applied the teaching D8 to the abrasive product known from D1 neither could nor would have arrived at the subject-matter of claim 1.

1.11 The respondent argued further that a combination of the teachings of D2 and D1 would have led the person skilled in the art to the subject-matter of claim 1 without exercising an inventive step.

1.12 The Board cannot follow said respondent's argumentation for the following reasons:

1.13 There is an obvious incompatibility between the teachings of D2 and D1. It is essential for the teaching of D2 that the pre-treatment with a finish is eliminated, see D2, [0004] and [0006]. In order to nevertheless adequately strengthen the mesh of the fabric also when the fabric is "unfinished", D2 proposes using a radiation curable binder, said binder being present in the maker coat, see D2, paragraph [0006]. On the other hand, the maker coat of Dl is applied after the frontfilling and the backfilling have been provided, see Dl, column 7, lines 42, 43. Combining the teaching of D2 and Dl so as to use the fabric structure of Dl as the open mesh of D2 would thus have meant eliminating the finishing steps of Dl. It would thus have resulted in the elimination of steps and the corresponding layers which Dl finds necessary so as to produce appropriate backings for abrasive products, see Dl, column 7, lines 23 to 26. The Board considers therefore that the skilled person would not have combined the teachings of D2 and D1 with each other.

1.14 For the above mentioned reasons the subject-matter of claim 1 involves an inventive step and meets the requirements of article 56 EPC.

2. Date of oral proceedings

2.1 In accordance with the notice of the Vice-President of Directorate-General 3 dated 16 July 2007 (Special edition No. 3 OJ EPO 2007, H1) a change of date for oral proceedings may be requested if, amongst other reasons, it clashes with firmly booked holidays. This appears to correspond to the present case and proof regarding the booking of the holidays was supplied. A change of date may therefore normally have been granted.

2.2 When a summons to oral proceedings is received an attorney will normally immediately consult his work diary to check his availability. The work diary of an attorney should necessarily contain booked holidays, since although they are private matters they mean that the attorney is not available on those dates. Such a check requires a matter of minutes and even writing a letter explaining the situation takes little time. A rapid indication of the situation to the Board can therefore be expected.

2.3 In the present case the attorney waited five weeks before informing the Board of his non-availability. The attorney explained that he had just returned from a week's absence and that beforehand there had been some day-long meetings. This may explain the last two weeks, though even some day-long meetings might not exclude informing the Board of the non-availability. This does not, however, explain why no action was taken during the first three weeks after receipt of the summons. Since the clash of dates would have been immediately apparent there is no reason why a prompt response could not have been given.

2.4 The Board considers that an attorney who wishes a change in the date of an oral proceedings has an obligation to inform the Board promptly of this desire. In the present case the attorney did not do this, so that the Board considered it was not appropriate to change the date.

2.5 The attorney argued that it was inappropriate for the case to be taken over by another attorney because of the extra cost involved. The said notice of the Vice-President does indeed require (see point 2.3 thereof) that the request for a change of date should explain why a change of representative is not possible instead. This consideration could have applied to a prompt request. However, the Board considers that when the attorney does not act promptly but allows a number of weeks to go by before acting then it must accept that this may result in extra costs.