T 1444/23 27-02-2025

1. Main request - Novelty in view of D6 and D7, Article 54 EPC

1.1 The opponent argued that document D6 (US 2012/0023762 Al) anticipated the subject-matter of claim 1 of the main request, i.e. including feature e) that the cell structure includes a grid shell structure forming a skin which continuously extends according to an outside surface and surrounds an inner volume. In particular, the opponent indicated that there were walls surrounding the volume 11, see Figure 4A.

1.1.1 The board disagrees. As correctly found by the opposition division in point 5.3 of the reasons for the decision under appeal and as indicated by the patent proprietor, the structure of D6 does not form a skin surrounding an inner volume. Contrary to the opponent's allegation and as correctly indicated by the patent proprietor, the space 11 cannot be regarded as an inner volume, since it is described in at least figures 4A and 4B and its corresponding passages of the description as an open space. The board thus concludes that the subject-matter of claim 1 of the main request is novel in view of D6.

1.2 With regard to document D7 (US 950,113), the opposition division found on page 7, second paragraph of the decision under appeal that "a tubular form is generally understood to be open at the ends; in D7 the drawings are very detailed and nevertheless nothing can be derived either in construction or function that would teach otherwise". Under this understanding, the opposition division concluded that the feature of claim 1 of the then auxiliary request 1, that the hollow cells have more than one shape and form was also anticipated by D7, since the inherent lower opening of D7 had the shape of a flat circle of larger diameter compared to the bent circles b (see reasons for the decision under appeal, page 8, first paragraph). The opponent concurred that it was the common understanding of the skilled person that a tubular body intrinsically comprises open ends, so that the lower end of the tubular handle of D7 presented an opening of different shape than the openings of the circumferential wall of the tubular handle. In addition, the opponent argued that it was clear from the cross-section of figure 4 of D7 that the handle B presented an upper opening resulting from the bent ears b**(1) and b**(2). Such an upper opening was close to a bent ellipse anticipating a further different form and shape than the side perforations or the bottom opening. In particular, as specified on page 1 of D7, lines 48 to 64, member A represented the supporting portion according to claim 1, while ears b**(1) and b**(2) belonged to the handle body B.

1.2.1 The board concurs neither with the finding of the opposition division nor with the arguments of the opponent for the following reasons. As correctly argued by the patent proprietor, there is no direct and unambiguous disclosure of any other opening apart from the perforations b in D7.

1.2.2 With regard to the alleged upper opening, the board notes, in line with the opposition division's reasoning, that the opening would be formed as part of a head supporting portion for the cartridge, even if this opening was considered as being directly and unambiguously derivable from the cross-section of figure 4A of D7. As a matter of fact, this part of the handle B of D7 is explicitly disclosed to secure the member A by means of ears b**(1) and b**(2), see page 1, lines 56 to 60, i.e. to be a head supporting portion. However, the subject-matter of claim 1 of the main request makes a clear distinction between a handle body comprising the cell structure with hollow cells and a head supporting portion. Therefore, even in the case that the alleged upper opening was disclosed by D7 it could not be understood as being part of the handle body as required by the claim.

1.2.3 Turning to the alleged lower opening, it seems to be uncontested that there is no explicit disclosure in D7 for such an opening. In the absence of an explicit disclosure of such an opening, it needs to be assessed whether this feature can be considered as implicitly disclosed, in other words, if it is immediately apparent to the skilled person that nothing other than the alleged implicit lower opening is given in the "tubular handle" B of D7. This is however not the case here. Contrary to the opposition division's finding, the board concurs with the patent proprietor that a tubular form does not necessarily require that both ends are open. There is also no indication in D7 about the manufacturing process of the tubular handle B that could lead to the conclusion that the lower end is inevitably opened. The conclusion of the opposition division that a tube is generally open at the ends and that the description and the drawings do not contradict this possibility, cannot be equated with an implicit disclosure, i.e. that it is inevitable, since other possibilities cannot be excluded.

1.2.4 In sum, since D7 fails to explicitly or implicitly disclose more than one shape and form for the hollow cells, the subject-matter of claim 1 of the main request is considered new in view of D7.

1.3 The parties confirmed that the same arguments and conclusions above apply to the subject-matter of method claim 10 of the main request, which is therefore considered new in view of D6 or D7.

2. Main request - Inventive step, Article 56 EPC

2.1 The opponent argued that the subject-matter of claim 1 of the main request lacked an inventive step in view of D7 in combination with common general knowledge.

2.2 In a first line of attack, the opponent argued that if the handle of the razor of D7 was regarded as closed at its bottom, the skilled person would provide an opening at the bottom for practical reasons. Indeed, when water entered the interior of the handle, there was a need for rinsing through this water. Therefore the provision of an open-ended cylindrical handle would be obvious for the skilled person in view of the problem of rinsing through water, thereby arriving at the subject-matter of claim 1 of the main request in an obvious manner.

2.2.1 The board disagrees. As correctly indicated by the patent proprietor, the skilled person would not be motivated to provide a further opening at the bottom of the handle since the water would already rinse through the numerous, already existing, openings b, so that there is no need to provide an additional opening at the bottom, let alone an opening with different shape and form from the openings b.

2.3 In a second line of attack, the opponent argued that D7 was directed to the same purpose as posed in paragraph [0004] of the patent in suit, namely to improve shaver handles with regard to material consumption and economy. Indeed, D7 stated on lines 13 to 16 of page 1 that its object was "to provide a safety razor which shall be simple in construction, inexpensive in manufacture, and at the same time be strong and durable".

2.3.1 The opponent further argued that no technical effect could be derived from the distinguishing feature that the openings were different in form and in shape. In particular, there was no proof that the alleged enhanced mechanical properties as put forward in paragraph [0006] of the patent in suit could be achieved over the whole breadth of the claim. According to the opponent, in some situations covered by the claim, the mechanical properties could even be compromised. Therefore, in the absence of a proven technical effect, the problem to be solved could be therefore seen as merely providing an alternative pattern for the openings. Starting from D7, the skilled person would thus consider as an obvious alternative to provide the handle with openings with different shapes and forms, thereby arriving at the subject-matter of claim 1 in an obvious manner.

2.3.2 The board disagrees for the following reasons. As correctly pointed out by the patent proprietor, even if the objective technical problem were to be seen as providing an alternative handle for a wet shaver, the skilled person would not be prompted to provide different opening shapes or different opening forms. Especially in view of the object of D7 of providing razor blades which are inexpensive to manufacture, the skilled person would be taught away from introducing a variety of shapes and forms for the apertures at the handle portion. This would involve additional tools and operations, thereby increasing the complexity and costs of manufacture, contrary to the purpose of D7. It follows that starting from D7 as closest prior art, the skilled person would not consider the distinguishing feature of claim 1 of the main request in order to provide an alternative.

2.4 For these reasons above, the board concludes that the subject-matter of claim 1 of the main request is inventive.

2.5 The parties confirmed that the same arguments and conclusions above apply to the subject-matter of method claim 10 of the main request, which is therefore considered inventive starting from document D7 as closest prior art.

3. Conclusions

In view of the above considerations, the board is of the view that the subject-matter of claims 1 and 10 is novel in view of D6 and D7 and inventive in view of D7 with common general knowledge. No other objections that could prejudice the maintenance of the patent according to the main request were raised by the opponent, nor are apparent to the board. The decision under appeal is thus to be set aside and the patent is to be maintained on the basis of the main request.