Résumé de Article 123(2) EPC pour la décision T0345/24 du 24.03.2025

In T 345/24 the board considered the omission of the qualifier "good" in feature 1.3 of the patent as granted to lack a direct and unambiguous basis in the application as filed. The board explained that, relative to claim 1 as filed, feature 1.3 had been introduced into the claim, in which the acquisition distribution layer (ADL) was defined to be "in contact with" the body-facing side of the absorbent core. The basis for this amendment was stated by the opposition division to be paragraph [0198] of the application as filed where, however, the ADL was disclosed to be "in good contact with" the body-facing side of the absorbent core. The board found the word "good" in the expression "good contact" to be technically relevant in the present context. For a skilled person, a good contact, at least in the technical field of absorbent articles, would imply face-to-face contact over a large area between two elements of the article. Conversely, if two elements were merely "in contact" with one another, at one extreme the expression encompassed merely single point contact over a small area. This latter condition of minimal contact between two elements would not be considered by the skilled person as embodying "good" contact between the elements. Despite the term "good" being somewhat imprecise, in the context in which it was used in the description it would be understood nonetheless to indicate a certain kind, amount and/or quality of contact. The proprietor's argument, with reference to G 1/93, that the term "good" could be omitted from claim 1 due to it lacking a technical meaning was thus not accepted by the board. Furthermore, the board explained that the purpose of an ADL in absorbent articles was to remove liquid deposited on a topsheet and ensure its distribution within itself, but also to ensure swift transfer of the liquid to the absorbent retention part of the core of the article. In this context, a "good" contact between the ADL and the absorbent core had to be contact which efficiently promoted the transfer of liquid from the ADL to the absorbent core such as, for example, by providing a large face-to-face contact area. Consequently, at least a contact promoting swift transfer of liquids was implied through the expression "good contact", which the word "contact" alone failed to achieve. Finally, the proprietor's argument that the ADL being positioned between the topsheet and the absorbent core as a closed, layered structure unambiguously implied that significant face-to-face contact (i.e. "good" contact) was achieved was, at least in this generality, not accepted by the board. The board agreed with the opponent that claim 1 did not exclude further layers being positioned between the ADL and the absorbent core which would allow, for example, contact of merely the peripheral edge of the ADL with the absorbent core. The board concluded that a skilled person would not equate such peripheral contact over a limited area to be "good" contact in the sense of the application as filed. Hence, the board decided that the ground for opposition under Art. 100(c) EPC was prejudicial to the maintenance of the patent as granted.