T 1587/06 03-04-2009

1. Article 100(b) EPC 1973

The appellant's objection in this regard was first made when filing its grounds of appeal and relates to both the granted patent and the amended form of the patent (which the opposition division found allowable). Any objection arising in this regard is thus not a result of the amendments made. As follows from G9/91 and G10/91 (OJ EPO 1993, 408, Reasons item 18), this ground is to be treated as a fresh ground of opposition and may not be considered by the Board without the consent of the proprietor. Since consent has been refused by the proprietor, the ground of opposition under Article 100(b) EPC 1973 will not be considered in this decision.

2. Introduction of E6 into proceedings

Although the opposition division concluded that E6 was not sufficiently relevant for it to be introduced into proceedings, the Board concludes to the contrary.

The respondent also withdrew its objection to the introduction of E6, and has submitted that E6 may be considered as the closest prior art.

In this regard it is further to be noted that E6 was filed by the appellant during opposition proceedings in response to the filing of an amended claim 1 by the proprietor, whereby the amendment came from the description. Since the relevance of the documents previously on file for use in attacking the inventive step of the subject matter of claim 1 was reduced by means of the amended claim, and since E6 contained the added feature, its introduction into proceedings should have been allowed in order to permit the opponent to provide an attack against inventive step in combination with the teaching of E2.

E6 is thus introduced into the proceedings.

3. Inventive step

3.1 E6 discloses (see e.g. Figs. 1 and 2; page 8, lines 9 to 25; page 9, lines 1 to 11; page 10, lines 6 to 10; page 11, lines 1 to 7; page 13, lines 8 to 26) an absorbent article having all the features of claim 1 with the exception of the features defining that the inner layer is substantially vapour pervious and that the laminate has a first breathable zone with a vapour transmission rate of at least 1500 g/m**(2)/24 hours.

In this regard it should be mentioned that although the term "moisture-pervious" is used in E6, this term is the same as "liquid pervious" as used in claim 1 of the opposed patent since the term "moisture pervious" in E6 is used to describe the properties of the facing layer 12, which by its very nature has to allow the quick transport of liquids impinging on the facing layer 12 into the absorbent core beneath; apertured non-woven fabrics (i.e. liquid permeable fabrics) are disclosed as one of several materials for use in this layer (see e.g. page 10, lines 6 to 10). The "first zone" defined in claim 1 may be considered to be the zone in E6 where liquid impervious barrier layer 18 and liquid permeable (and thus vapour permeable) backing layer 16 overlap one another, whereby the "second zone" may be regarded as the area of the backing layer 16 laterally outwardly of the first zone. Since the backing layer 16 is liquid permeable, it is self-evident that it has a MVTR vastly in excess of 2500 g/m**(2)/24 hours, since values of above 5000 g/m**(2)/24 hours are attributable even to layers which are not liquid permeable and only vapour permeable. The respondent did not dispute this.

3.1.1 The respondent however argued that, in addition to the aforegoing features, E6 failed to disclose a laminate, based on its allegation that a laminate requires a whole surface continuous connection. However, the Board finds the respondent's arguments in this regard unconvincing. First, nowhere in the patent is a definition of a laminate given in such a way that a connection of one sheet to another over the whole surface is required or implied. Further, paragraph [0026] of the patent defines that the means by which the inner and outer layers of the laminate should be joined to one another "include any means known in the art". Examples are then given which include adhesives and ultrasonic bonds. No special adhesives and no special way of ultrasonic bonding are disclosed which might permit a whole surface continuous connection, and the Board finds that a skilled person in the art of disposable absorbent articles is aware that ultrasonic bonding is a discrete location bonding process resulting, necessarily, in spacing between the bonded areas. Similarly, adhesives are typically sprayed or added in lines when adhering parts of the backsheet together; no special adhesives are indicated which might be used to join the inner layer and outer layer together in such a way that a continuous surface coverage is present whilst at the same providing the vapour permeability claimed and flexibility necessary in such products. The Board thus concludes that this passage of the patent can only be understood to imply that the laminates of the patent encompass layers which are joined together in such a way that gaps may be present between the specific joined areas of the sheet whilst still maintaining a unified sheet.

3.1.2 Nor is the Board convinced by the respondent's argument that laminates are understood by a skilled person, always, to require a continuous connection. Whilst it is agreed that many laminates do have such a connection, the technical field to which the laminate belongs must be considered. In the field of absorbent articles it is known that laminates do not require whole surface continuous connection. E4 (see e.g. column 1, lines 16 to 21) discloses for instance a laminate formed by needle punching, which necessarily implies a spacing between the connections. More importantly, as explained above, the patent itself discloses joining methods (e.g. ultrasonic bonding) which by their nature do not provide a whole surface connection between the layers, so that irrespective of whether a laminate might sometimes mean whole surface coverage, the patent itself teaches something different. The respondent's further reliance in part on paragraph [0024] in this regard does not change the Board's conclusions, since paragraph [0026] does not provide any reference to, or distinction from, the joining methods given in paragraph [0024]; paragraph [0024] simply gives several forms of adhesive that may be used to attach the backsheet to the absorbent core including both a continuous layer or a patterned layer. At the end of the paragraph [0024] ultrasonic bonds as well as "any other suitable attachment means" known in the art are disclosed.

3.1.3 The respondent further argued that it was not disclosed how the barrier layer 18 and the backing layer 16 in E6 were connected, such that nothing beyond a mere peripheral connection of the layers was anyway implied, in particular since the methods for securing the various layers were not specific for any particular layers, and a peripheral bonding would not provide a laminate even when giving a broad meaning to the term "laminate".

However, the Board also finds this argument unconvincing. E6, page 13, lines 16 to 23, describes methods of securing the multiple layers of the diaper together. Specifically, securing of the barrier layer 18 to backing layer 16 is mentioned. The methods of securing the layers together are those normally applicable in the art and a skilled person would regard these as applicable to any of the layers. The fact that adhesive in the form of sprays is to be used, makes it clear that, for the diaper product in question, mere peripheral bonding is not intended, even if such bonding could be understood to be something different from the term "laminate" used in claim 1.

3.1.4 The Board thus concludes that the only features of claim 1 not disclosed in E6 are that the inner layer is substantially vapour pervious, and that the laminate has a first breathable zone with a vapour transmission rate of at least 1500 g/m**(2)/24 hours.

3.2 In view of its relevance to the objective problem to be solved and in view of the large number of features which has in common with claim 1, E6 is also to be regarded as the closest prior art. This is also not disputed by any party.

3.3 Turning to the objective problem to be solved starting from E6, it is first noted that the problems given in the patent at paragraphs [0006] to [0008] are not objective in the light of E6, since no features of claim 1 define any structural aspect related to these problems which would clearly distinguish the claimed article from that disclosed in E6.

Since the features defined in claim 1 do however relate to aspects of vapour permeability not present in E6, the Board concludes that the objective problem to be solved over E6 is to further improve the breathability of the absorbent article.

3.4 E6 already gives the skilled person the indication that breathability is affected by the liquid impermeable barrier layer 18 and goes some way to improving breathability by limiting the surface area of the barrier layer compared to that of the pervious backing layer (see e.g. page 4, lines 5 to 9 and page 9, lines 1 to 11). When wishing to further improve the breathability of the article, i.e. a disposable absorbent article with leg cuffs, the skilled person is taught by E2 (see e.g. column 3, lines 52 to 56), which also relates to a disposable absorbent article with leg cuffs, that by making the baffle layer 16 of E2 smaller, selected portions of the absorbent core lie "directly adjacent the breathable backsheet 14". Further, the skilled person is then taught in column 4, lines 42 to 52, that the baffle layer 16 which is attached to the liquid permeable backsheet 14 may be vapour permeable and that the baffle layer 16 should be highly breathable with an MVTR value preferably "of at least about 4,000 g/m**(2)/24 hours" but "more preferably a value of at least about 5,000 g/m**(2)/24 hours". These statements, in particular the preference for greater breathability, together teach a skilled person that improved breathability is desirable and can be achieved by using both a smaller impermeable layer and by making this layer vapour-permeable.

With this knowledge a skilled person would apply the teaching of E2 to E6 and would solve the problem of providing improved breathability by replacing the material of barrier layer 18 in E6 by a vapour permeable baffle material as known for the baffle of E2. In taking this obvious step, the Board concludes that the MVTR of the first zone (i.e. an area of the backsheet including the combined layers) would implicitly be in excess of 1500 g/m**(2)/24 hours, since this value itself is already below the lowest MVTR value given for the baffle layer in E2 and vastly below the preferred value. When combined with the backing layer 16 in E6, which is itself of a much higher MVTR value, this would result in a MVTR value clearly in excess of that claimed. In this regard, it is obvious for a skilled person wishing to improve breathability of the E6 article by adaptation of the barrier layer by means of a vapour permeable material, to use a connection type between the layers which would minimise any loss of vapour permeability due to the joining itself. Additionally it should be noted that no critical significance has been attached to the specific MVTR value of 1500 g/m**(2)/24 in the patent (see paragraph [0036]), but merely that is should be above that level so as to provide an entire absorbent article with a high average MVTR.

3.5 The respondent argued that E6 itself gave a complete solution to the problem of improving breathability and that merely making the barrier layer smaller would improve breathability. However the Board concludes that a skilled person is not limited to one way of improving breathability when he is taught by the prior art that other ways are possible, in particular when the prior art mentions both reducing the size and providing a high level of vapour permeability. Further, it is evident that the barrier layer in E6 cannot simply be reduced in size without further consequence, otherwise liquid exudates in the absorbent core would not be satisfactorily prevented from passing out through the backing layer onto the wearer's clothing. Thus, a skilled person aware of this restriction concerning the reduction in size of the barrier layer would indeed be prompted to seek further solutions, thus providing a further incentive to consult E2.

3.6 The respondent submitted additionally that E2 taught away from the claimed subject matter since it necessitated non-adherence and free movement between the baffle layer and the backsheet, which was the opposite of a laminate. The Board finds first that this argument lacks relevance when considering the objective problem to be solved, since the skilled person already starts from a laminate in E6 and is seeking to further improve an article already having that laminate. The teaching obtained from E2 is concerned with the vapour permeability and also the size of the barrier layer. Even if the structure in E2 were not considered to be a laminate, the teaching given to a skilled person would not prevent this from being transferred to E6. However, the Board also concludes that E2 does disclose a laminate in the broad sense used to describe the possible means for connection of layers in the laminate in the patent (see paragraph [0026]). In particular, whilst E2, column 2, line 52 to column 3, line 10, indeed discloses a large non-connected area between the backsheet and the barrier layer (for the purpose of providing an article having a more clothlike texture while maintaining liquid impermeability), column 4, lines 10 to 30 of E2 on the other hand relates to various configurations for attaching the baffle layer 16 to the backsheet 14 and discloses the use of intersecting bond lines in a grid-like design and a joined surface area up to 30% of the mutually facing area. The Board concludes that at least this latter disclosure goes far beyond mere peripheral bonding and would indeed provide a unified sheet structure as present in a laminate.

3.7 The respondent's further submission that E2 does not necessitate the use of a vapour permeable baffle layer is agreed as such. However, when considering the objective problem to be solved of improving breathability, a skilled person reading E2 takes the teaching therefrom that higher vapour permeability is preferred and therefore would positively make this selection when wishing to improve breathability of the E6 article.

3.8 Likewise, although the respondent argued that the preferred higher vapour permeability would be used only where the barrier layer and backsheet were co-extensive, as shown in the Figures, and thus not in the case of barrier layers of reduced size, this is not found convincing by the Board.

The disclosure in column 3, lines 52 to 56 of reducing the baffle size in order that selected portions can lie adjacent the liquid-permeable and thus highly vapour-permeable backsheet 14 already indicates a desire to achieve breathability improvement. The disclosure in column 4, line 44 et seq concerning the preference for higher vapour permeability in the baffle layer is not linked to any specific embodiment at all, but is equally applicable to all embodiments. Whilst it may therefore be correct that high vapour permeability is to be favoured where the baffle layer is co-extensive with the backsheet, this does not detract from the disclosure of E2 to a skilled person with regard to the baffle and its relationship to the backsheet, teaching that a high vapour permeability is indeed preferred.

3.9 Thus starting from E6 and given the objective problem to be solved, the skilled person would arrive at the subject matter of claim by applying the teaching of E2 without requiring inventive skill. The subject matter of claim 1 thus lacks an inventive step and the requirement of Article 56 EPC 1973 is not fulfilled. Claim 1 is therefore not allowable.