Résumé de EPC2000 Art 056 pour la décision T1445/21 du 20.06.2023

In T 1445/21 the claimed invention related to near anhydrous liquid detergent and conditioner products comprising encapsulated perfumes which are perfectly stable therein. The appellant relied on the experimental data in the patent as granted, and on the experimental data in the experimental report filed on 16 April 2021 to demonstrate the existence of a technical effect. The board agreed with the opposition division that the examples of the patent were not appropriate to show an improvement over the closest prior art associated with the reduced amount of water in the compositions. The experimental report showed a better olfactive performance for the compositions having 9% or 8.5% by weight of water in comparison to the compositions comprising 60% by water. It also showed that the fresh samples had in all cases a better olfactive performance than the sample stored for 3 days at 37°C. The respondents (opponents) considered that the post-published experimental report could not be relevant according to G 2/21, since the olfactive performance or intensity was not related to the problem of the contested patent. The problem of the contested patent was the stability of the fragrance microcapsules, and the measurement of said olfactive performance was not related to or encompassed by this technical problem. The board disagreed with this argument. It found it was indeed obvious that the measurement of the olfactive performance of the composition was directly related to the stability of the microcapsules containing the fragrance. The olfactive performance tested in the experimental report was regarded as encompassed by the technical teaching of the originally disclosed invention. The board noted however that the comparison between a composition comprising 60% by weight of water with a composition according to the invention comprising 9 or 8.5% was not suitable in the present case to substantiate the presence of an improvement over the prior art. When making a comparison with the closest prior art, the comparison had to be such as to show convincingly that the alleged beneficial effects or advantageous properties were due to the distinguishing characteristic of the invention compared to the closest state of the art. Only comparative tests centred on the closest embodiment in relation to the invention were suitable for this purpose, because it is only from there that the unexpected effect must come (see T 197/86, OJ 1989, 371; or T 1962/12). This was not the case with the present report, wherein a comparison had been made with formulations having a water content of 60%, i.e. very far from the upper limit of water (10%) defined in claim 1. Consequently, the experimental report did not appear to provide a valid comparison over the disclosure of the closest prior art. Accordingly, the experimental data of the patent and of the experimental report did not credibly demonstrate the existence of a technical effect linked with an amount of water not above 10% by weight. Consequently, the problem was as defined by the respondents and the opposition division in its decision, namely the provision of an alternative composition comprising aminoplast type microcapsules. The board noted that it was established case law that the simple act of arbitrarily selecting one among equally obvious alternative variations was devoid of any inventive character. The use of the microcapsules disclosed in D7 in an anhydrous composition was clearly contemplated in D7; the claimed subject-matter was therefore found to be obvious in view of D7 alone. Consequently, the claimed subject-matter lacked an inventive step and the main request did not meet the requirements of Art. 56 EPC. Auxiliary requests 1-8 likewise did not meet the requirements of Art. 56 EPC. The appeal was dismissed.