T 1551/22 (Solid anhydrous cosmetic compositionsANHYDROUS/ L'OREAL) 29-01-2024

1. Admission of D12 into the appeal proceedings

1.1 This document was filed by the appellant with its statement of grounds of appeal. D12 is a document evidencing common general knowledge relating to shampoo compositions and is mentioned by the appellant in the framework of the discussion on inventive step, in particular with regard to the obviousness of the claimed solution.

According to the appellant, it mentions on pages 25 and 26 the importance of the presence of a surfactant, in particular in a concentration of 12-20% for the lather provided by the shampoo.

1.2 In the Board' s view this document could and should have been filed during the opposition proceedings, after the opposition division issued a positive opinion on inventive step in its preliminary opinion. At that stage, the appellant was aware that its objection on invenitve step was not considered convincing and should have realised that without further evidence the opposition would likely be rejected; it had also sufficient time to file any new evidence at that stage.

Additionally, document D12 does not concern at all formulations of solid shampoo compositions in the form of granules as claimed in the contested patent. D12 is a general document regarding formulations of shampoos and identifies on page 25 three forms of compositions which are liquids, gels and creams. In view of the limited relevance of this document, the Board sees an additional reason for not admitting it into the appeal proceedings.

Consequently, D12 is not admitted into the appeal proceedings (Article 12(4) and (6) RPBA 2020).

2. Main request - Inventive step

2.1 The claimed invention relates to cosmetic compositions useful in particular for cleaning or washing keratin materials such as the hair, which are in solid anhydrous form.

2.2 D1 was considered as the closest prior art in the decision of the opposition division and by the appellant in its statement of grounds of appeal.

D1 relates to powdered shampoo concentrates which, on addition of water, rapidly form a rich, viscous, ready to use shampoo with desired viscosity, foaming, cleansing, rinseability and conditioning characteristics (see D1, col. 1, l. 10-17). The powder shampoo comprises from 50 to 75 parts of alkali metal or ammonium salt of an alpha olefin sulfonate containing from 12 to 18 carbon atoms and 18 to 30 parts of a non-ionic hydroxypropyl derivative of a polygalactomannann gum (see col 1, l. 36-45).

Example 1 of D1 discloses a shampoo in powder form comprising 74 wt% of an anionic surfactant (sodium olefin sulfonate C14-C16) and 22.80 wt% of an organic filler (Hydroxypropyl guar gum non-ionic). Said mixture is passed through a 30 mesh screen (col. 3, l. 26-28). Examples 2 and 3 disclose the same type of composition.

D1 does not disclose the presence of at least 5 wt% of one or more amphoteric surfactants.

2.3 The opposition division defined the problem as the provision of a solid granulated cleansing composition having improved foaming properties, which is also the problem as defined by the respondent.

The appellant defines the problem as the provision of an alternative solid composition with equal foaming properties or as the provision of a solid granulated cleansing composition having improved foaming properties, respectively, depending on whether or not the tests provided in D11 are to be taken in account.

2.4 The claimed solution to any of these problems is the provision of solid anhydrous cosmetic compositions in particle form with at least 5% by weight of at least one amphoteric surfactant selected from (C8-C20)alkylbetaines, (C8-C20)alkylamido(C1?C6)alkylbetaines, (C8?C20)alkylamphoacetates) and (C8?C20)alkylamphodiacetates).

2.5 D11 provides a comparison between a composition A comprising 74% of an anionic surfactant and 22.8% of a polymeric filler with a composition B comprising respectively 64% and 22.8% of the same anionic surfactant and the same polymeric filler in combination with 10% by weight of an amphoteric surfactant, namely cocoamidopropyl betaine; both compositions comprise also NaCl and composition A corresponds to the disclosure of D1, in particular its example 1. The compositions are applied to the hair, and the comparison shows through photographs that the composition B according to the invention provides a better start of the foaming and a foam with better general properties.

In view of D11, the Board is of the opinion that the problem is as defined by the opposition division in its decision and by the respondent.

2.6 In this regard, the Board notes that the application as filed mentioned as an objective that the composition as claimed must allow rapid initiation of foaming and the rapid obtaining of an appropriate and sufficient abundant foam (see page 2, lines 15-16 ). Moreover, examples 2 and 3 of the patent indicate that several compositions according to the invention form a firm and very creamy foam. According to the decision G 2/21, a patent proprietor may rely upon a technical effect for inventive step if, based on the application as originally filed, the skilled person would derive said effect as being encompassed by the technical teaching and embodied by the same originally disclosed invention. In the present case, in view of the above the Board considers that the criteria set forth in G2/21 are met. Therefore, and the post-published experiments D11 must be taken in consideration.

2.7 With regard to obviousness, D5 and D8 have been cited.

D5 discloses a granulated personal care shampoo which dissolves readily in water and has a pleasant feel (par. [0010]). Most of the compositions of the examples of D5 comprise an anionic surfactant, an amphoteric surfactant and a filler (ex. 1-18, 25, 27, 28-30). However, the surfactants are present in the examples in lower amounts than required by claim 1 of the contested patent, while the compositions of the examples comprise a very high amount of filler, i.e more than 80% by weight. The amphoteric surfactant might be the same as claimed in claim 1 of the main request (see D5, par. [020]), but is always comprised in an amount less than 5 wt%. There is furthermore no teaching in D5 that the use of an amphoteric surfactant would have any impact on the foaming properties of the composition as demonstrated in D11, even if foaming efficiency is mentioned in paragraph [043] of D5. Hence, there is no incentive in D5 to increase the amount of the amphoteric surfactant for improving the foaming properties.

D8 is a skin silk peeling powder comprising inter alia sodium myristoyl glutamate, sodium lauroyl glutamate, zea mays (corn) starch, talc, hydroxypropyl starch, kaolin, aluminum silicate, disodium lauryl sulfosuccinate, and microcrystalline cellulose in undisclosed amounts. Consequently, this document is irrelevant with regard to the obviousness of the solution.

Thus, the Board does not see any reason to overrule the decision of the opposition division, since none of D5 or D8 gives any useful technical guidance to the skilled person to add an amphoteric surfactant in at least 5 wt% in order to improve the foaming properties of the composition of D1. Hence, the claimed solution is not obvious and the main request meets the requirements of Article 56 EPC.