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3. The attacked embodiments
The two attacked embodiments are goalkeeper gloves according to the generic term of patent claim 1. There is no problem insofar. However, rigid bodies arranged directly on the exterior of a goalkeeper gloves are a considerable risk for injuries of players in body contact with the goalkeeper. Therefore, none of the attacked glove models has hard plastic bodies arranged directly on the glove's exterior. Instead, individual protective elements against over-stretching the fingers are integrated in the glove back's interior. This is shown by the following section through such a glove:
Integration of protective element against over-stretching in the glove backs in the attacked embodiments. The various layers are numbered; layer 3 is the integrated protective element.
The illustration shows that the glove back consists doubtlessly of more than two material layers
=> feature a. with its terminal wording "consists of two material layers" leads to a non-infringement of this feature by both attacked goalkeeper gloves.
One could object that a patent claim is to be interpreted (cf. § 14 Pat G, Art. 69 EPC) and that the description might show the skilled person that the glove's back may also consist of more than two material layers. However, the general part of the description lacks every hint in this direction and the description of the preferred embodiment once more states with alarming clarity:
„The goalkeeper glove shown in fig. 1 consists at its back of two material layers; this can be seen in fig. 2.".“
(DE 35 16 545 C2, Enclosure A3, column 1, l. 62)
Here, too, an entirely terminal definition of the formation of the glove's back is used without any hint to modifications with more than two material layers.
Even if the author did not consider more than two layers when wording the claim (one cannot consider everything in advance), the use of a more open wording such as "the glove's back comprises at least two material layers" would lead to the literal realization of feature a. in the attacked embodiments. The prior art does not compel to a limitation to exactly two material layers.
3.1. The first attacked embodiment
Maybe a court can be convinced that feature a. is at least infringed under the doctrine of equivalence. Then, it still has to be examined whether the other features are realized. In the first attacked embodiment, the support element integrated into the glove's back has the following shape:
The support element of the first attacked embodiment in a configuration bent in the gripping direction (left) and in the extended arrangement (right), where the blocking elements abut.
The support element consists of a thin but tearproof plastic foil on which a series of blocking bodies is arranged. The flexible foil allows bending in the gripping direction. However, in the extended position, the blocking bodies abut and prevent the support element from being bent in the other direction. If such a support element is integrated into the glove's back behind every finger, the goalkeeper's hand is protected against over-stretching.
A comparison of this construction with the features b. - d. of the claim results in the following:
- The plastic foil is an inner material layer which substantially guarantees tensile strength but is flexible. Feature b. is therefore fulfilled.
- The blocking bodies form pressure-resistant elements being strung together in longitudinal direction. Therefore, feature c. is also realized.
- Finally, forming gaps (cf. illustration top left), the blocking bodies are arranged on the plastic foil such that they blockingly abut short before the glove's stretching position. Therefore, feature d. is also realized.
Ignoring feature a., the first attacked embodiment is doubtlessly covered by the literal scope of protection of the claim. This is not particularly surprising since, apart from the integration into the glove's back, the first embodiment corresponds substantially to the preferred embodiment of the invention (cf. the first sketch of Mr. Smart and the illustration of the attacked embodiment, top left). Such a scope of protection is the absolute minimum to be performed by a patent.
3.2. The second attacked embodiment
The support element of the second attacked embodiment also protects against over-stretching of the fingers:
The support element of the second attacked embodiment
This element consists of a series of pin-jointed rigid plastic elements. The joints are made such that bending in the gripping direction is possible without resistance; however, short before the stretching position, blocking is also achieved so that the support element cannot be bent into the other direction.
The following illustration shows a detailed photo of two elements, showing the design of the joints more clearly:
A comparison of this support element with features b. - d. of the granted patent claim, the following results:
- this embodiment does not use an interior and an exterior material layer, there is in particular no interior flexible material layer, guaranteeing tensile strength. Therefore, feature b. is not realized.
- The plastic elements are substantially pressure-resistant elements, being strung together in longitudinal direction. Therefore, feature c. is realized.
- However, these elements are not settled on an interior layer, but are pin-jointed. Therefore, feature d. is also not realized.
Even if the problem of feature a. is ignored (the unfortunate use of the word "consist"), there is certainly no literal infringement, since features b. and d. are not realized. It will also rather not be possible to assume an equivalent infringement. There is an equivalent effect, but it appears to be unlikely that the skilled person could have found this other solution, starting from the claim's meaning.
Could it have been avoided? Restraint is advisable. Knowing the attacked embodiment, one always knows how the claim should have been worded.
The following "errors", however, ought to have been avoided:
- The use of the word "consist" instead of a more open wording such as "comprise".
- To overtly adjust the description to the single preferred embodiment.
- The principle underlying the invention has not been worded. The limitation to the explained embodiment is not done due to dense prior art but only because a sufficient abstraction from the concrete technical solution did not work. Certainly, a more functional claim wording, at best using blocking bodies as constructive elements, would have let to a broader scope of protection.
As a result, a patent was created which offered the inventor too little protection. A basic principle was disclosed to the public, but only one concrete embodiment was protected; it can be circumvented relatively simply.