EPO - L’ORÉAL v/ Henkel AG & CO. KGAA and Kao Germany GmbH
T0226/13 – 3.3.10
EPO - Board of Appeal
L’ORÉAL V/ Henkel AG & CO. KGAA et Kao Germany GmbH
The patentee L’Oréal was represented by Véronique Crest, European Patent Attorney. The decision of the Board of Appeal is favorable to the patentee and maintains the patent as granted.
The opposition was directed against European patent EP 1 757 328 on the basis of the extension of the subject-matter, lack of novelty and lack of inventive step.
The invention relates to an aqueous dye composition for dyeing keratinous fibers, in particular the hair comprising three specific compounds.
This decision is of interest, especially for the inventive step.
During the opposition proceedings, the patentee had produced comparative tests. Then, the Opposition Division rejected the oppositions.
In appealing, Henkel submitted comparative tests in response to the reasons of the Opposition Division on the ground of inventive step. Thus, the Board of Appeal was confronted with two test reports, the conclusions of which were contrary. However, the Board of Appeal did not discuss these results.
Indeed, the patentee had positioned the technical problem in two aspects, namely the improvement of the rise of the coloration and the improvement of the intensity of the coloration. Indeed, in the deposited tests, these two properties had been measured.
Since the Board has come to the conclusion that an inventive step must be allowed in view of the improvement in the intensity of coloration, it has not dealt with the aspect of the problem which concerns the improvement of the rise of the coloration. However, the company Henkel in its tests had shown results for the rise of the coloration only. Thus, the discussion held on the day of the oral proceedings between the parties on the comparative tests was neither resumed, nor decided in that decision.
The Board of Appeal thus proposed a problem-solution approach, which relies only on one aspect of the technical problem: the improvement of the intensity of the coloration. It considered that the filed tests made it possible to formulate the technical problem as an improvement in the intensity of the coloration and concluded that this problem was solved by the compositions, object of the patent.
In addition, the cited documents did not make the proposed solution to the technical problem obvious and thus the claimed invention was considered to involve an inventive step.