T 0920/00 16-06-2003

I. The mention of the grant of European patent No. 590 675 in respect of European patent application No. 93 115 848.9 filed 30. September 1993 and claiming a US-priority from 30 September 1992 was published on 21 May 1997.

II. Three notices of opposition were filed against this granted patent by the Appellants (Opponent 01 and 02) and other party (Opponent 03), on the grounds of Articles 100(a) and (b) EPC.

III. By decision of the Opposition Division announced during the oral proceedings on 3 May 2000 and posted on 19 July 2000 the patent was maintained as amended according to the first auxiliary request filed during the oral proceedings.

Claim 1 as upheld by the Opposition Division reads as follows:

"A sanitary napkin (19 for mounting onto the bodyside of a crotch portion (130) of an undergarment, and, during use, absorbing bodily excretions, comprising:

an elongated absorbent pad (12) having a longitudinal axis, a longitudinally central portion and opposite longitudinal elasticized raised side edges (50, 52), said side edges (50, 52) being deflectable with respect to said central portion, and including an absorbent (18) having longitudinal side edges (44) and (46) and being contained between a bodyside, liquid-permeable cover (24) and a garment side, liquid-impermeable baffle (26), said absorbent pad (12) being normally curved upward with respect to its longitudinal axis; and

control means for selectively controlling deflection of at least one of said side edges (50, 52) during use, said control means being anchorable under said crotch portion (130) of said undergarment, said anchoring establishing a generally downward pull on said side edge (50, 52) and preventing said side edge from folding in towards said absorbent (18),

wherein said control means comprises two garment attachment panels (14, 16), normally extending generally downward and inward from said absorbent pad (12) adjacent to said side edges and wherein said garment attachment panels (14, 16) include a fixed portion (70) attached to the underside of said absorbent pad (12) towards said side edges and defining an effective attachment point (76) and a free portion (72) diverging from the underside of said absorbent pad (12) for, during use, extending under said crotch portion (130) of said undergarment, and including means for anchoring said free portions of said garment attachment panels (14, 16) to establish a predetermined deflection of said side edges (50, 52) and to facilitate accurate mounting of said sanitary napkin (10) on said undergarment, wherein said means for anchoring said free ends of said garment attachment panels (14, 16) comprises mating fastener elements (78, 80), one on each garment attachment panel (14, 16), so configured as to provide substantially only a single, predetermined lateral relationship of one garment attachment panel (14, 16) to the other and

wherein the effective attachment point (76) is spaced from the absorbent side edges (44, 46) with a spacing (D) in the range of one-third to three-quarters of the width of the elasticized raised side edges (50, 52), further including tension means included in said deflectable side edges (50, 52) of said pad (12), said tension means contributing to said upward curving of said absorbent pad (12) and wherein said side edges (50, 52) normally extend generally laterally outward and upward with respect to said absorbent (18) and said control means tends to pull said side edge outward and downward and prevent said side edge (50, 52) from being folded in over said absorbent (18) by said tension means when the curvature of said pad (12) is altered during use, wherein said tension means comprises an elastic member extending longitudinally in said raised side edges (50, 52)."

IV. Two notices of appeal were lodged against this decision on 13. and 29 September 2000 by the Appellants I and II (Opponent 02. and 01, respectively) together with payment of the appeal fee on the same respective days. The statements of grounds of appeal were filed on 17 and 21 November 2000, respectively.

V. In a communication dated 2 April 2003 the Board explained why the alleged lack of clarity or insufficiency of disclosure was not convincing. As regards inventive step it would have to be discussed during the oral proceedings whether the skilled person would have combined the teachings of D1 with those of D2 and if so whether this would lead in an obvious manner to the subject-matter of current claim 1.

VI. Oral proceedings were held on 16 June 2003.

Opponent 03 as further party to the proceedings did not appear as it had announced with letter dated 15 April 2003.

The Appellants requested that the decision under appeal be set aside and that the European patent No. 590 675 be revoked.

The Respondent (Patentee) requested that the appeal be dismissed and that the patent be maintained in the amended form as upheld by the Opposition Division.

VII. In support of its requests the Appellants essentially relied upon the following submissions:

Claim 1 did not comply with the requirements of Articles 100(b), 83, 84 EPC because the wording "the mating fastener elements ... so configured as to provide substantially only a single predetermined lateral relationship of one garment attachment panel (14, 16) to the other" was neither disclosed nor was it clear enough as to enable a skilled person to carry out its teaching. Contrary to the patent description the sizes of the hook and loop elements shown in table 2 did not define a single relationship because they allowed a relatively large overlap of the fastener elements. No indication was given as to how to achieve this "single predetermined lateral relationship".

Since the protection was intended for the napkin as such, the term "in use" could not contribute to any clarification.

Moreover, the subject-matter according to claim 1 was not novel when compared with the sanitary napkin disclosed D1. This known product could be used in the same manner as the sanitary napkin according to the patent. In particular the side flaps 5, 6 (D1, Figure 1) could be drawn into a mating position as claimed thus providing an effective attachment point similar to that defined in claim 1. The prior art liquid barriers 10 would work in the same manner as the side edges 50, 52 of the patent being intended to prevent the side edges of the panty being soiled.

Even if found to be novel, the sanitary napkin claimed at least lacked inventive step with respect to the combination of teachings of D1 and D2. With respect to D1 the remaining problem to be solved by the patent was to improve the positioning of a sanitary napkin when attached to a panty. The skilled person had no difficulties to recognize that the fastener elements disclosed in D2 would improve the fit, and therefore would replace the side flaps 5, 6 of D1 with the mating fastener elements 26 of D2 thus arriving at the subject- matter claimed without the involvement of inventive step.

VIII. The submissions of the Respondent are summarised as follows:

There was no inconsistency between claim 1 and the patent specification. Having regard to page 7, lines 8 to 13, it was clear that the lateral adjustment was restricted on a very small range because the fastener elements should fully overlap one another as was shown in Figure 2.

The claimed invention was novel over D1 because this document did not disclose mating fastener elements, so configured as to provide substantially only a single, predetermined lateral relationship, and any indication was lacking to use that sanitary napkin in the manner of the patent in suit.

The side flaps known from D2 had a totally different configuration and were attached to the backside of the sanitary napkin. Therefore no incentive was derivable to apply these fastener elements to the napkin of D2.