T 1847/22 () of 5.11.2024

Summary of Facts and Submissions

I. In its interlocutory decision the opposition division found that, account being taken of the amendments made by the patent proprietor during the opposition proceedings, European patent No. 3 085 344 met the requirements of the EPC.

II. Appeals were filed by the proprietor and both opponents. Subsequently, by letter of 9 April 2024, opponent 1 withdrew its opposition and its appeal.

III. The appellant/proprietor requested that the decision under appeal be set aside and the patent be maintained in amended form based on the main request or, as an auxiliary measure, based on one of auxiliary requests 1 to 15, all requests having been filed with the grounds of appeal, whereby auxiliary request 12 was that found allowable by the opposition division.

IV. The appellant/opponent 2 requested that the decision under appeal be set aside and the patent be revoked.

V. The following document is of relevance for this decision:

D2 DE 10 2011 002 268 A1

VI. With letters dated 27 September 2023 and 3 October 2023 respectively, the proprietor and opponent 2 requested oral proceedings by videoconference.

VII. The Board issued a summons to oral proceedings and a subsequent communication in which it gave its provisional opinion inter alia mentioning that it had doubts whether claim 1 of the main request fulfilled the requirement of Article 123(2) EPC and that, should this be the case, the same would apply to claim 1 of auxiliary requests 1, 4 and 13. Claim 1 of auxiliary requests 14 and 15 also appeared to contravene Article 123(2) EPC. With respect to auxiliary requests 2 and 5 to 11 the Board indicated that it was inclined not to admit these requests under Article 12(4) RPBA. The Board additionally stated that the oral proceedings would be held in person.

VIII. Oral proceedings took place in person at the premises of the EPO in Haar.

The final requests of the parties remained unchanged.

IX. Claim 1 of the main request reads as follows, with feature numbering as used by the proprietor in its grounds of appeal inserted in bold:

"1 A self-adhesive member (1) for adhering to and covering a portion of a user's skin,

2 said self-adhesive member comprising a wound contact layer (3) having a self- adhesive coating

3 and a wound pad (4) attached to said wound contact layer;

4 said self-adhesive member also comprising a backing layer, wherein said backing layer is provided on the opposite side of said wound pad in relation to said wound contact layer;

5 the wound pad comprising fibers (14) and

5.1 being provided with at least a first and a second discrete group (15, 115, 215, 315,415, 515, 615) of incisions (15a-c, 515a-d, 615a-e, 815a-c), wherein

5.2 each one of said discrete groups of incisions comprises at least a first and a second incision, wherein

5.2.1 said first and said second incision extend from a common starting point (16) to a respective end point (17a, 17b, 17c), wherein

5.2.2 the end point of said first incision is spaced from the end point of said second incision, wherein

5.2.3 the common starting point of said first group of incisions is provided on a first side of an imaginary line extending in the machine direction (MD) of said fibrous wound pad, and

5.2.4 the common starting point of said second group of incisions is provided on a second side of said imaginary line, and wherein

5.2.5 a first incision (15a, 515a, 615a-b, 615d, 815a) of said first group (15) of incisions and a second incision (15b-c, 515d, 615c, 615e, 815b-c) of said second group (115, 215, 315, 415) of incisions each cross said imaginary line, wherein

6 said wound pad comprises a distributing layer (11), comprising nonwoven material, wherein

6.1 said incisions extend through said distributing layer, and

6.2 wherein each one of said incisions has a straight extension."

X. The text of the claims of the remaining requests is appended at the end of the decision.

XI. The proprietor's arguments relevant to the decision may be summarised as follows:

Main request, auxiliary requests 1, 2, 4, 13 and 15 - Article 123(2) EPC

The combination of features of claim 1 of the main request and of auxiliary request 1 were directly and unambiguously disclosed in the application as originally filed. There was a link between the paragraphs [0023], [0060] and claims 1, 9, 10 and 15 as originally filed. The same link between paragraphs [0023] and [0060] also held true for claim 1 of auxiliary requests 2, 4, 13 and 15.

Auxiliary requests 3 and 12 - Article 54 EPC

D2 did not disclose a wound contact layer having a self-adhesive coating.

The argument of opponent 2 that the machine direction of a wound pad as a whole according to the invention could not be established and therefore the machine direction in claim 1 was a non-limiting feature, should not be admitted into the proceedings. The drawings made by opponent 1 were late filed. In addition, opponent 1 had withdrawn its opposition and appeal such that this argument was an amendment of opponent 2's appeal case made only at the oral proceedings for which there were no exceptional circumstances. The machine direction of a wound pad anyway could not be oriented in a diagonal direction as this was not a logical possibility for the skilled person.

For the first time in the oral proceedings the proprietor argued that there was no link in D2 between paragraphs [0032], [0041], [0048] and [0049] and therefore features 2 and 3 of claim 1 were not disclosed unambiguously in combination. This was not a new line of defence, since the novelty defence regarding D2 had always been part of the appeal proceedings.

Auxiliary requests 5-11 - Article 12(4) RPBA

The conclusion of the opposition division that the subject-matter of claim 1 of the main request lacked novelty over D1 had taken the proprietor by surprise. This change of opinion rendered auxiliary requests 2 and 5-11 ineffective against that conclusion and so the reordering of those requests before the opposition division was an attempt to increase procedural efficiency. The reordering of those requests again on appeal should however be allowed.

Auxiliary request 14 - Article 123(2) EPC

The features added to claim 1 of auxiliary request 14 had their basis in paragraphs [0073] to [0075] as well as Figure 4b of the published application. The skilled person would not derive that paragraph [0076] also belonged to the disclosure provided by Figures 1 to 4b, since it only referred to "drawings" in general.

XII. The opponents' arguments relevant to the decision may be summarised as follows:

Main request, auxiliary requests 1, 2, 4, 13 and 15 - Article 123(2) EPC

The application as filed did not directly and unambiguously disclose the combination of features of claim 1.

The disclosures in paragraphs [0023] and [0060] respectively were not linked together nor were these linked to the other features of originally filed claims 1, 9, 10 and 15 that were now combined in claim 1, apart from in specific embodiments, such as Fig. 2 where these features were only disclosed together with additional features.

This objection also applied to claim 1 of auxiliary requests 1, 2, 4, 13 and 15.

Auxiliary request 3 - Article 54 EPC

In D2, the second row of Figure 1b disclosed all the features of claim 1 including that each one of said discrete groups of incisions also comprised at least a third incision extending from said common starting point.

The coating defined in claim 1 did not need to be continuous nor uniform.

The machine direction of the wound pad in claim 1 was a non-limiting feature. Since a wound pad according to the invention could comprise several layers (see e.g. paragraph [0069] of the opposed patent) each having an unknown and indeed possibly a different machine direction when each layer was made, the machine direction of a wound pad as a whole according to the invention was not a structural feature with any limiting meaning that could be established, rather only a machine direction of its individual layers at best. The feature was thus not a structural feature limiting claim 1.

The argument concerning the issue of machine direction had been made by opponent 1 in its appeal grounds and the drawing was filed with its reply to the grounds of appeal of the proprietor. The use of opponent 1's argument was therefore not an amendment to the opponent 2's appeal case as it was part of the whole appeal case.

On the other hand, however, the line of defence from the proprietor that features 2 and 3 were not disclosed based on the argument that there was no link between paragraphs [0032], [0041], [0048] and [0049] of D2was something raised for the very first time in the oral proceedings before the Board and should not be admitted.

Auxiliary requests 5-11 - Article 12(4) RPBA

The proprietor's action prevented the opposition division from reaching a decision on auxiliary requests 5 to 11, which the proprietor now wished to have examined before the request upheld by the opposition division. Amongst other things, this was not procedurally efficient and these requests should not be admitted.

Auxiliary request 12 - Article 54 EPC

The second row of incisions in Figure 1b having the star-shaped embodiment also disclosed the added feature in this request compared to claim 1 of auxiliary request 3, i.e. that the length of each one of the incisions within a group of incisions is the same.

Auxiliary request 14 - Article 123(2) EPC

Paragraphs [0073] to [0075] belong to the embodiment of Figures 1 to 4b, which however disclosed a more specific pattern than the one defined in claim 1.

Reasons for the Decision

1. Request for oral proceedings being held by videoconference

1.1 The proprietor and opponent 2 respectively requested oral proceedings by videoconference.

1.2 Under Article 15a(1) RPBA, the Board may decide to hold oral proceedings pursuant to Article 116 EPC by videoconference if the Board considers it appropriate to do so, either upon request by a party or of its own motion.

1.3 In this particular case, The Board stated in item 15 of its preliminary opinion that the present case required several geometrical discussions regarding the machine direction, imaginary lines, starting and end points of incisions in the application as well as in the prior art, and that these discussions might well require drawing and mutual completion of the drawings of the counterpart. The oral proceedings would therefore be held in person on the EPO premises.

1.4 The parties did not present any further arguments on this matter such that the decision to hold the oral proceedings on the EPO premises was maintained. The Board notes that the parties did indeed resort to drawing on the flip chart on several occasions during the oral proceedings.

2. Main request and auxiliary requests 1, 2, 4, 13 and 15 Article 123(2) EPC

2.1 As mentioned in the Board's Article 15(1) RPBA communication, the basis for the combination of features in claim 1 of the main request was doubted.

2.2 The proprietor argued that the basis for claim 1 of the main request was the combination of claims 1, 9, 10 and 15 as originally filed together with the disclosure in paragraphs [0023] and [0060] of the description. More specifically, the combination of paragraphs [0023] and [0060] allegedly did not provide the skilled person with new technical information, as was confirmed by Figure 2 of the application as originally filed, which disclosed the features of claim 1 together. In addition, the proprietor argued that paragraph [0055] provided a link between the aspects of the first invention regarding the wound pad embodiments in paragraphs [0007] to [0054] and the second aspect of the invention and the self-adhesive member in paragraphs [0056] onwards such that there was no need to repeat the former again in relation to the self-adhesive member.

2.2.1 However, the Board does not accept these arguments. First, the criterion normally applied to assess whether the subject-matter of claim 1 extends beyond the content of the application as filed is not simply whether technical information is new in the sense of specific individual technical aspects not being previously disclosed in the application as filed, but also, even if the individual technical aspects per se are disclosed in the application as filed, whether their combination is also directly and unambiguously disclosed in the application as filed. The proprietor did not put forward a reason to deviate from this and the Board also sees no reason to deviate from it either.

2.2.2 Second, the respective "exemplary" embodiments of paragraphs [0023] and [0060] belong to a long list of alternative embodiments in which each paragraph corresponds to a different alternative. Even though paragraphs [0055] and [0056] refer to a wound pad of the "previous exemplary embodiments", this only avoids the necessity of repeating the wound pad alternatives of paragraphs [0007] to [0054] again for the more general self-adhesive member described from paragraph [0055] onwards. However, paragraphs [0055] and [0056] do not single out any particular combination of wound pad features (from paragraphs [0007] to [0054]) to be combined with any particular self-adhesive member features (as disclosed from paragraph [0057] onwards), such that the skilled person would still need to perform a selection from each of these two lists and further combine it with the features of originally filed claims 1, 9, 10 and 15.

Figure 2 of the patent application does disclose all the features of claim 1 of the main request in combination. However, the Board does not find that it constitutes a pointer to the specific combination of features of claim 1, since it also discloses several additional features, such as, for example, that the angle between one of the incisions within a group of incisions and another incision within the same group of incisions is between 72° and 120° (see also paragraph [0025]) or that a narrow area extending along the periphery of the wound pad has been left without groups of incisions (see also paragraph [0076]). Figure 2 therefore discloses a more specific combination comprising several additional features, some such features even coming from the lists of different embodiments mentioned above, such that the skilled person would not be pointed by Figure 2 to an unambiguous disclosure of (only) the specific feature combination of claim 1. The same applies to the disclosure in figures 1 to 5 also mentioned by the proprietor. If anything, the skilled person is taught that when combining certain selected features, the disclosure in the Figures shows that this combination only arises in the context of embodiments with other, additional features.

2.3 Thus, the subject-matter of claim 1 of the main request does not fulfil the requirement of Article 123(2) EPC.

Auxiliary requests

2.4 Claim 1 of auxiliary request 1 differs from claim 1 of the main request in that the feature

"wherein said first and said second incision extend from a common starting point (16) to a respective end point (17a, 17b, 17c)"

was replaced by

"wherein each one of said discrete groups of incisions comprises at least a first and a second incision, wherein each one of said at least first and second incisions extend from a single common starting point (16) to a respective end point (17a, 17b, 17c)".

2.5 Claim 1 of auxiliary request 2 differs from claim 1 of the main request in that the feature

"and wherein the angle (a, ß, x) between one of the incisions within a group of incisions and another incision within the same group of incisions is between 60° and 150°"

was appended at the end of the claim.

2.6 Claim 1 of auxiliary request 4 differs from claim 1 of the main request in that the feature

"wherein each one of said incisions has a straight extension, and wherein each one of said discrete groups (15, 515, 615) of incisions also comprises at least a third incision extending from said common starting point (16)"

was appended at the end of the claim.

2.7 Claim 1 of auxiliary request 13 differs from claim 1 of auxiliary request 4 in that the following feature has been appended at the end of the claim:

"wherein the length (L1, L2, L3) of each one of the incisions within a group of incisions is the same."

2.8 Claim 1 of auxiliary request 15 differs from claim 1 of auxiliary request 4 in that the following features have been appended at the end of the claim:

"wherein said discrete groups of incisions are provided in rows of discrete groups of incisions,

wherein said rows of discrete groups of incisions are spaced from each other in the cross direction of the wound pad; the cross-direction defining a direction being perpendicular to the machine direction".

2.9 The Board stated in paragraphs 6.1, 8.1 and 11.1 of its preliminary opinion that the objection under Article 123(2) EPC as set out for the main request also seemed to apply to claim 1 of auxiliary request 1, 4 and 13, respectively and that also auxiliary request 15 seemed to contravene Article 123(2) EPC.

The same applies for the subject-matter of claim 1 of auxiliary requests 2 and 15 that, with regard to claim 1 of the main request, contain only additional feature(s) appended at the end of the claim. None of these amendments overcomes the objection that paragraphs [0023] and [0060] do not form a single disclosure, even less so with the remaining features of claim 1 discussed above for the main request.

2.10 The proprietor stated during the oral proceedings that its arguments, in respect to the same features in claim 1 of the main request, also applied to claim 1 of auxiliary requests 1 and 2.

The proprietor also stated that it did not wish to present further arguments in respect of claim 1 of auxiliary requests 4, 13 and 15. The Board therefore sees no reason to change its preliminary opinion regarding any of these requests which is hereby confirmed.

2.11 The subject-matter of claim 1 of auxiliary requests 1, 2, 4, 13 and 15 therefore does not fulfil the requirement of Article 123(2) EPC.

2.12 The main request as well as auxiliary requests 1, 2, 4, 13 and 15 are therefore not allowable.

3. Auxiliary request 3 - Article 54 EPC

3.1 The subject-matter of claim 1 of auxiliary request 3 differs from claim 1 of the main request in that the the features:

- "said self-adhesive member also comprising a backing layer, wherein said backing layer is provided on the opposite side of said wound pad in relation to said wound contact layer",

- "wherein each one of said incisions has a straight extension",

which had their basis in paragraphs [0023] and [0060] have been erased, and the following feature has been added:

"wherein each one of said discrete groups (15, 515, 615) of incisions also comprises at least a third incision extending from said common starting point (16)."

As regards the feature "coating"

3.2 Regarding feature 2, the proprietor argued that a wound contact layer having a self-adhesive coating was not explicitly disclosed in D2. It was mentioned in paragraph [0041] of D2 that the shell on the wound facing side was equipped with a hydrocolloid adhesive. "Equipped with" could mean that the shell comprised one or more adhesive spots or dots, which is not to be equated with a coating layer on a wound contact layer.

This argument is not persuasive. Claim 1 defines that the wound contact layer has a self-adhesive coating. According to paragraph [0041] of D2, the adhesive is on the wound facing side and therefore, even if it is not applied continuously or uniformly, it provides a coating to the shell ("Hülle"). Contrary to the argument of the proprietor, claim 1 does not define that the coating is in the form of a layer, even less so a continuous layer and thus leaves the form or extent of the coating undefined. D2 therefore discloses a "coating" as defined in feature 2.

As regards the feature "machine direction" - admittance and novelty

3.3 Opponent 2 argued that the machine direction in claim 1 was a non-limiting feature. Since a wound pad according to the invention could comprise several layers (see e.g. paragraph [0069] of the patent under appeal) and the embodiments indeed did so, where each layer possibly has a different machine direction, the machine direction of a wound pad as a whole according to the invention is not a structural feature of the wound pad which can be established but rather only a feature of its individual layers. Therefore also the embodiments in the first two lines of Figure 1b) of D2 disclosed this feature, since the imaginary line of features 5.2.3 to 5.2.5 could be drawn in any direction, e.g. diagonally as the drawing in the adapted Figure 1b) filed by opponent 1 showed.

3.3.1 The proprietor argued that this argument by opponent 2 should not be admitted, since the drawings made by opponent 1 had been late filed. In addition, opponent 1 had withdrawn its opposition and appeal such that the argument was an amendment of opponent 2's appeal case made only at the oral proceedings, for which there were no exceptional circumstances.

The Board is not persuaded by these arguments. Although the drawing was missing from the grounds of appeal of opponent 1 which had discussed the aspect of the machine direction (page 5, first complete paragraph of opponent 1's grounds of appeal), it was nevertheless filed by opponent 1 with a letter dated 15 February 2023 and with its reply to the grounds of appeal of the proprietor in the same context regarding the interpretation of the feature "machine direction" and its application in the disclosure of D2 (see the reply to the proprietor's grounds of appeal, page 5, last paragraph, to page 7, line 2, as well as the last paragraph of page 9). It thus formed part of opponent 1's complete case on appeal (Article 12(3) RPBA). The drawing was therefore not late filed under Article 13 RPBA.

The fact that opponent 2 adopted the arguments from opponent 1 is not considered to be an amendment to the appeal case of opponent 2. As recalled for example in decision T 1820/18 (point 4 of the Reasons), it is not possible to split the appeal proceedings into different procedures, each dealing separately with the grounds for opposition and the facts, evidence and arguments presented by the individual opponents concerned (T 790/03, point 2.1 of the Reasons). Therefore, each opponent can rely on any grounds, facts, evidence and arguments duly submitted by other opponents (see also T 620/99, point 1 of the Reasons; T 1654/19, point 27. of the Reasons; T 1657/14, point 2.4.3 of the Reasons). The adoption of opponent 1's arguments by opponent 2 during the oral proceedings is therefore not an amendment to the latter's appeal case under Article 13 RPBA.

Also, the arguments were made by opponent 1 in its grounds of appeal (on page 3 to page 4, third paragraph and page 5, first complete paragraph) but also again in its reply to the grounds of appeal of the proprietor (page 5, last paragraph, to page 7, line 2, as well as the last paragraph of page 9). These arguments are directed to paragraph 2.5.2.1 of the decision under appeal and the interpretation of "machine direction" adopted by the opposition division when assessing the novelty of claim 1 over D2 and are therefore also not to be excluded as being an amendment of the opponents' cases under Article 12(4) RPBA, not least since the arguments are directly responsive to the reasoning of the opposition division given in the impugned decision, where (on page 11, first paragraph) it concluded that a machine direction could be assigned to "any nonwoven", rather than considering the wording of claim 1 which was instead directed to a fibrous "wound pad" which, as stated above, can have several layers.

Opponent 2's reliance on Figure 1b) of D2, the related drawing of opponent 1 and its novelty attack is therefore not to be excluded.

3.4 Substantively on the argument per se, the proprietor argued that the machine direction of a wound pad could never be oriented in a diagonal direction as this would not be a logical possibility for the skilled person, who would only consider the lateral and the longitudinal direction as possibilities.

This argument, however, does not convince the Board. As explained above, since a machine direction cannot be established for the wound pad as a whole, nothing stands against drawing an imaginary line in any direction, such as the diagonal line proposed in the opponent's marked-up Figure 1b), in a way that cuts two star-shaped incision groups. D2 therefore discloses features 5.2.3, 5.2.4 and 5.2.5 of claim 1 of auxiliary request 3. This consequence, as such, when considering the star-shaped incisions was not disputed by the proprietor.

Lack of disclosure of the combination of features - admittance of a new line of defence

3.5 The proprietor presented for the first time during the oral proceedings a further line of defence that there was no link between paragraphs [0032], [0041], [0048] and [0049] and therefore features 2 and 3 were not disclosed in combination with each other nor in combination with the other features of claim 1. Opponent 2 argued that such a line of defence had never been argued before (and was rather complex to consider during the oral proceedings for the first time due to the need to establish and then explain with arguments why particular parts of D2 were indeed part of a single disclosure) and that it should not be taken into account under Article 13(2) RPBA.

3.6 According to Article 13(2) RPBA, "[a]ny amendment to a party's appeal case made ... after notification of a communication under Article 15, paragraph 1, shall, in principle, not be taken into account unless there are exceptional circumstances, which have been justified with cogent reasons by the party concerned".

3.7 The proprietor argued that its line of defence, whilst new as such, was not an amendment to its case because the novelty objection using D2 was part of the appeal proceedings of the opponents and opponent 2 should be prepared to discuss any issues relating to it.

The Board does not accept this. The substantive issues argued in relation to the disclosure of D2, and relied upon by the proprietor in its statement of grounds of appeal and its reply, were only whether paragraph [0041] of D2 disclosed a self-adhesive "coating" and whether a machine direction could be established and how such a direction would look like in the embodiments of Figure 1b) of D2 (see the proprietor's grounds of appeal, pages 25 and 26 in regard to the relevant features of this embodiment with regard to the features in claim 1 of this request).

The question whether the separate passages of D2 together formed a single disclosure, which was raised during the oral proceedings before the Board is not a further development within the framework of the appeal case submitted so far, since it is not directed to any of these issues. It is, quite evidently, an entirely new issue which had never been argued before.

The Board thus finds that the line of defence presented by the proprietor is an amendment to its appeal case.

3.8 The proprietor did not invoke, nor does the Board find that there are, exceptional circumstances for taking the amendment into account.

3.9 The Board therefore exercised its discretion under Article 13(2) RPBA not to take it into account the new line of defence regarding whether the separate passages of D2 formed a single disclosure.

Remaining features

3.10 It was not contested by the proprietor that the star-shaped pattern in the second row of Figure 1b) of D2 discloses a third incision extending from said common starting point as defined in the feature added to claim 1 of auxiliary request 3 (see the proprietor's grounds of appeal, item 6.2.2, and item 4.3.2 of the decision).

3.11 The proprietor did not contest that any further features were not disclosed in D2.

3.12 The subject-matter of claim 1 of auxiliary request 3 is therefore not novel under Article 54 EPC.

4. Auxiliary requests 5 to 11 - admittance

4.1 Among various aspects of consideration, auxiliary requests 5 to 11 as submitted with the grounds of appeal were submitted during opposition proceedings on 2 March 2022, before the time limit set under Rule 116 EPC. However, at that time they were auxiliary requests 6 to 12, and were thus ranked above auxiliary request 13, which was the request later found allowable by the opposition division, albeit re-ranked and numbered as auxiliary request 4 by the proprietor.

4.2 However, these requests were reordered during the oral proceedings before the opposition division as auxiliary requests 7 to 13, and thus to a rank lower than the request 4 found allowable by the opposition division, just to be reordered again to auxiliary requests 5 to 11 with the filing of the proprietor's grounds of appeal to a rank higher than the request found allowable by the opposition division.

4.3 In items 5.3 and 5.4 of its preliminary opinion the Board stated the following:

"5.3 As stated in Article 12(2) RPBA, the primary objective of the appeal proceedings is to review the decision under appeal in a judicial manner, a party's appeal case shall be directed to the requests, facts, objections, arguments and evidence on which the decision under appeal was based. However, with its reordering of requests made during the oral proceedings, the proprietor of its own volition elected to have auxiliary request 4 (now auxiliary request 12) decided upon before further requests. The proprietor's action thus prevented the opposition division from reaching a decision on (current) auxiliary requests 2 and 5 to 11, which the proprietor now wishes to have examined before the request upheld by the opposition division. The Board cannot see any reason for the reordering of the requests with the proprietor's grounds of appeal which would justify the Board considering the requests in a new order. The proprietor has also given no reason why it has amended its case on appeal compared to the case it made before the opposition division in this regard.

5.4 Without a reason justifying such an amendment in the appeal case (i.e. the reordering of the requests), the Board intends not to admit auxiliary requests [2 and] 5 to 11 into the proceedings, having regard to Article 12(4) RPBA."

4.4 The proprietor argued that it had reordered the requests during the oral proceedings before the opposition division because it was surprised by the conclusion of the opposition division that claim 1 of the main request was not novel with regard to D1. According to the proprietor, the reordering/renumbering of the auxiliary requests was not an arbitrary procedural manoeuvre, but a response to the new circumstances that emerged during the oral proceedings, and the re-ordering was an attempt to maintain procedural efficiency.

4.4.1 These arguments are however not persuasive. Even though the opposition division changed its mind on novelty in respect of a certain document, this should not have come as a surprise to the proprietor, since the annex to the summons issued by the opposition division is only a preliminary opinion.

4.4.2 In addition, whilst it is true that reordering the requests may often reduce the duration of oral proceedings before the opposition division, the proprietor should bear in mind that the order of claim requests is determined by the proprietor itself and should reflect the order of preference in which requests are to be considered and the text in which the proprietor wishes a patent to be maintained. The reordering of the requests, even if it does not change the subject-matter of the underlying claims, is not merely a formalistic amendment of the proprietor's case without procedural consequence, since it signals how the proprietor has chosen, specifically, to proceed with its case and thus on which requests, and in which order, the opposition division must reach its decision.

4.5 The Board therefore maintains its provisional opinion that the proprietor's actions prevented the opposition division from reaching a decision on (current) auxiliary requests 5 to 11 such that there is no decision of the opposition division which the board can review (Article 12(2) RPBA). As a consequence, these requests became "procedurally inactive" in the same way as if the proprietor had withdrawn these requests; such withdrawal would have led to non-admittance under Article 12(6) RPBA (see also: T 1404/20, reasons 1.4; T 1853/22, reasons 3.2; T 1809/22, reasons 4.3). There is no reason to treat requests which are not formally withdrawn but downgraded such the opposition division is prevented from taking a decision differently because the purpose to ensure the primary object of appeal proceedings to review decisions of the first instance according to Article 12(2) RPBA is impaired in the same manner. The Board cannot see any reason for the reordering of the requests with the proprietor's grounds of appeal which would justify the Board considering the requests in a new order and thus for the first time in appeal.

4.6 The Board hence exercised its discretion not to admit auxiliary requests 5 to 11 into the proceedings, having regard to Article 12(4) RPBA.

5. Auxiliary request 12 - Article 54 EPC

5.1 Claim 1 of auxiliary request 12 differs from claim 1 of auxiliary request 3 in that the following features has been added:

"and wherein the length (L1, L2, L3) of each one of the incisions within a group of incisions is the same."

5.2 In item 9.11 of its preliminary opinion, the Board already considered that the second row of Fig. lb includes a discrete group with multiple incisions extending from a common starting point, all having the same length.

5.3 During the oral proceedings, the proprietor did not wish to present further arguments in this respect such that the Board has no reason to deviate from its provisional opinion and concludes that D2 also discloses the features added to claim 1 of auxiliary request 12.

5.4 The subject-matter of claim 1 of auxiliary request 12 is therefore not novel over D2 (Article 54 EPC) and auxiliary request 12 is not allowable.

6. Auxiliary request 14 - Article 123(2) EPC

6.1 Claim 1 of auxiliary request 14 differs from claim 1 of auxiliary request 3 in that the following features have been appended at the end of the claim:

"wherein said three incisions, in each of said discrete groups (15, 515, 615) of incisions, extend from said common starting point (16) in three different directions, the end points (17a,17b,17c) of each one of said incisions being distanced from each other, the first incision in each group of incisions extending in the cross-direction (CD) of the wound pad;

the cross-direction defining a direction being perpendicular to the machine direction (MD);

the two other incisions of each discrete group of incisions being provided with an angle to the machine direction (MD) of the wound pad, the angles between each one of the three incisions being 120°;

the lengths (L1, L2, L3) of the respective incision being the same for all three incisions within one discrete group of incisions,

and wherein said third incision of said second discrete group of incisions crosses said imaginary line."

6.2 The proprietor argued that these amendments were disclosed in paragraphs [0073] to [0075] as well as Figure 4b of the published application.

This is, however, not accepted by the Board. Paragraphs [0073] to [0075] belong to the embodiment of Figures 1 to 4b, which however discloses a pattern more specific than the one defined in claim 1. For example, the pattern has a narrow area along the periphery of the wound pad without groups of incisions (see paragraph [0076] of the published application).

This narrow area is not disclosed specifically in Figure 4b, but this is because Figure 4b is a "detailed view" of one group of incisions according to the first embodiment of the present invention (see column 9, lines 48 to 50 of the published application), the first embodiment being the embodiment to which Figures 1 and 2, which disclose the narrow area along the periphery, also belong.

6.3 The proprietor also argued that the skilled person would not derive unambiguously that paragraph [0076] belonged to the disclosure of these Figures, since it only referred to "drawings" in general.

The Board also does not find this argument persuasive. Paragraph [0076] belongs to the group of paragraphs ranging between paragraph [0073] and [0078] that describe the pattern of incisions of the first exemplary embodiment to which Figures 1, 2, 3, 4a and 4b belong. The skilled person reading the description would therefore derive directly and unambiguously that the "drawings" referred to in paragraph [0076] are indeed Figures 1 to 4b belonging to the first embodiment.

The pattern of incisions disclosed in the first exemplary embodiment is therefore more specific than the one defined in claim 1 and cannot provide an unambiguous basis for the amendment in the absence of further features from the embodiment.

6.4 The subject-matter of claim 1 of auxiliary request 14 therefore does not fulfil the requirement of Article 123(2) EPC. Auxiliary request 14 is consequently not allowable.

7. Absent any set of claims in the proceedings which comply with the requirements of the EPC, the patent has to be revoked (Article 101(3)(b) EPC).

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.