kst2640/corpus10 huggingface dataset:
This means that the problem underlying the patent in suit in view of document (2) can only be defined as to find an alternative granular detergent composition. This problem was solved with a granular detergent composition having at least one component type which contains clay (or water-insoluble aluminosilicates) (see examples 8 to 10 of the patent in suit).
2.3.10 The question remains to be decided whether this solution involved an inventive step or not.
All the ingredients (clay, water-soluble silicate, the bleaching agents) (see Claim 1) are usual in the art and since a specific technical effect can not be recognised an inventive step cannot be acknowledged.
The subject-matter of Claim 1 does not fulfil the requirements of Article 56 EPC.
3. First, Second and Third Auxiliary Requests
3.1 Articles 54, 83, 84 and 123 EPC
The Board is satisfied that the subject-matter of all these requests meets the requirements of Articles 83 (see points 2.1, 2.1.1 to 2.1.3), and that Claim 1 of each of these requests meets the requirements of Articles 84 and 123(2) EPC. The Board is also satisfied that the subject-matter of Claim 1 of each of these requests is novel (Article 54 EPC).
A detailed reasoning is not necessary since all these requests fail for other reasons.
3.2 Inventive step
3.2.1 Claim 1 of the First Auxiliary Request
Claim 1 of the first auxiliary request differs inter alia from Claim 1 of the main request in that the bleaching agent is restricted to alkalimetal percarbonate granules and that the amount of clay in component (i) is at least 5% by weight of the composition.
Examples B4 and B9 are still embodiments representative for Claim 1 of the first auxiliary request since the base formulation contains 13,4% clay i.e. at least 5% by weight of the composition since the base concentration is 85,3 weight % of the final composition.
Example B4 had the worst performance of the B1 to B5 experiments, and example B9 had the second worst performance of the experiments B6 to B10.
It is referred to the reasoning under points 2.3.1 to 2.3.10. which applies mutatis mutandis. As has been concluded under points 2.3.9 and 2.3.10, the provision of an alternative granular detergent composition having at least one component type which contains clay (or water-insoluble aluminosilicates) does not contribute an inventive step, the ingredients and their amounts being usual and not amounting to a specific technical result.
3.2.2 Claim 1 of the Second Auxiliary Request
The subject-matter of Claim 1 of the second auxiliary request differs in essence from that of Claim 1 of the first auxiliary request in that water-soluble silicate was dry mixed with the remainder of the composition wherein the dry mixed portion of the water-soluble silicate comprises less than 10% by weight of the granular detergent composition.
Examples B5 and B10 represent embodiments of Claim 1 insofar as the concentrations of the ingredients are concerned; in both experiments 3,2 weight % of water soluble silicate had been post added; even if the performance of B10 had the best rating (4% loss of AvOx), that of example B5 however had a rating of 12% loss of AvOx, the rating of 29% loss of AvOx of example B4 being the worst of the B6 to B10 experiments, although B4 represented an embodiment according to the invention; example B1 was with an AvOx rating of 0% loss the best of the B1 to B5 experiments but B1 did not represent an embodiment according to the invention.
The reasoning under 2.3.1 to 2.3.10 applies mutatis mutandis to Claim 1 of the second auxiliary request.
As to the feature regarding dry mixing, this is a technical measure known in the art (document (2), page 17, lines 14 and 15) and does not provide a particular technical effect. Therefore this process step cannot contribute an inventive step.
The subject-matter of Claim 1 does not meet the requirements of Article 56 EPC.
3.2.3 Claim 1 of the Third Auxiliary Request
The subject-matter of Claim 1 of the third auxiliary request differs from that of Claim 1 of the first auxiliary request in that the alkalimetal percarbonate granules are substantially coated.
The reasoning under 2.3.1 to 2.3.10 applies mutatis mutandis to Claim 1 of the third auxiliary request since also the percarbonate used in the experiments B1 to B5 and B6 to B10 was coated with sodium chloride (page 11 of the letter dated 25 October 2002 and its annex, line 6 below the table).
The coating of percarbonate is a technical measure known in the art (document (2), page 18, lines 7 to 11); no particular technical effect results therefrom. Therefore this process step cannot contribute an inventive step.
4. Fourth Auxiliary Request
4.1 Claim 1
The subject-matter of Claim 1 differs from that of Claim 1 of the first auxiliary request in that it is a use claim for improving percarbonate stability in a granular detergent composition.
4.2 Articles 84 and 123 EPC
The Board is satisfied that Claim 1 meets the requirements of Articles 84 and 123(2) EPC. A detailed reasoning is not necessary since the request fails for other reasons.
4.3 Article 83 EPC
Claim 1 is directed to the use of water-soluble silicates for improving the percarbonate stability in a granular detergent composition.
The extent of disclosure which the description must contain depends upon the nature and extent of the invention which is claimed.
It is the invention which must be sufficiently disclosed that is the claimed subject-matter which gives rise to the technical effect. Claim 1 indicates clearly the purpose of the use: the improvement of the percarbonate stability.
The claimed invention, i.e. the use of water-soluble silicates for improving the percarbonate stability, must be capable of performance by a skilled person without undue burden either on the basis of the information in the application on its own or supplemented when appropriate by information which is part of the common general knowledge of such a skilled person.
The measures to be taken according to Claim 1 are
1. the amount of clay in compound (i) is at least 5 weight % of the composition, and
2. the water-soluble silicate is in the same granule as the clay.
However these two concrete measures are not sufficient to lead to an improved percarbonate stability. It results from the data submitted by the appellant that the presence of water-soluble silicate in the same granule as the clay, even if the amount of clay is at least 5% by weight, is not a guarantee that the percarbonate stability is improved. Composition B4 while meeting the requirements of Claim 1 of the fourth auxiliary request for instance had the worst performance in the B1 to B5 series.
As the description is silent on measures to be taken in such a case, there is a lack of disclosure for carrying out the invention by a skilled person in such a manner to achieve an improvement in percarbonate stability as required by Claim 1, especially also because there is no reference basis to be compared with when the improvement has to be evaluated.
A claim directed to the use of water-soluble silicates for improving the percarbonate stability in a granular detergent composition is not supported by the description and therefore the invention is not disclosed in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.
The requirements of Article 83 EPC are not met.
2. The patent is revoked.
I. The Appellant lodged an appeal, received at the EPO on 13 May 2004, against the decision of the Examining Division posted 17 March 2004, refusing the European patent application no. 01 915 434.3 filed as an international patent application PCT/ES01/00115 and published as EP-A-1 269 891.
The Examining Division held that the application did not meet the requirements of Articles 52(1) and 54 EPC having regard to the following document
D1: WO-A-00 02470.
II. With a communication of 18 January 2007 pursuant to Article 100(2) EPC the Board suggested a clarification of the characterizing part of claim 1 (all requests) which would render the claimed seat distinct from the prior art. With letter of 22 May 2007, the Appellant stated his approval of the suggested amendment.
III. The Appellant requests that the decision under appeal be set aside and a patent be granted based on the following documents in accordance with main, first, and second auxiliary requests.
Main request
No.: 1 as amended with letter of 22 May 2007
No.: 2 to 11 as filed with letter of 25 February 2004
Pages: 3-8 as published
Pages: 1,2 as filed with letter of 25 February 2004
Sheets: 1/2, 2/2 as published
1st Auxiliary request
No.: 2-11 as filed with letter of 25 February 2004
2nd Auxiliary request
No.: 2-8 as filed with letter of 25 February 2004
Pages: 1,1a,2 as filed with letter of 25 February 2004
In addition, the Appellant requests that the appeal fee be reimbursed. As a subsidiary request, he requests oral proceedings.
IV. The wording of the independent claims of the requests is as follows :
1. A seat, particularly to one incorporating part of the features characteristic of seats of the high stool type, insofar as it constitutes an individual seat that is taller than a normal chair, where the seat as such is situated at a such height as to allow the user to rest the users feet on the floor or on a footrest and is constituted by a body that at the upper end thereof, on the surface of use, is differentiated into in a rear seat portion for the users buttocks and a higher front portion which, inserted between the users thighs, allows the user to sit astride it, said front portion being differentiated, lengthwise down the centre, into two parallel portions, said parallel portions, being mirror images, spaced apart to define therebetween an open space, characterized in that said open space is located in correspondence with the users genital area and allowing the latter to be accommodated therein.
First Auxiliary Request
With respect to claim 1 of the main request the lines of claim 1 pertaining to the rear seat portion are amended to read : ... a rear seat portion for the users buttocks, said rear portion including a gently concave surface, and a higher portion ... (italics added by the Board to indicate text inserted)
Second Auxiliary Request
With respect to claim 1 of the main request the final lines of the claim 1 are amended to read : ... to define therebetween a frontal open space which constitutes a deep notch that extends across the full thickness of said seat body, characterized in that ... (italics added by the Board to indicate text inserted).
1. The appeal complies with Articles 106 to 108 and Rule 64 EPC and is therefore admissible.
2. Allowability of amendments under Article 123(2) EPC
The amendment of the final line of claim 1 of all three requests by the insertion of and allowing the latter to be accommodated therein is based on lines 2-4 of page 6 of the original description, and this amendment is thus allowable under Article 123(2) EPC.
3. Novelty with regard to D1
3.1 The invention concerns a seat of saddle type, which comprises a rear portion for the users buttocks, and a higher front portion for insertion between the users thighs, which in turn comprises two parallel, spaced apart, mirror-shaped portions, between which an open space is formed. It is undisputed that such a seat is known from D1, see figures 2 and 4, lines 10-19, with the open space identified by reference 5. These features in fact appear in the preamble of claim 1 of each of the three requests.
3.2 In dispute is the sole characterizing feature of claim 1 (all requests), namely that the open space is located in correspondence with the users genital area and allowing the latter to be accommodated therein. The Board notes that, though this feature is drafted in reference to a users anatomy rather than in terms of concrete limitations of the claimed seat itself, it nevertheless considers it to be a sufficiently clear instruction to the skilled person as to where the open space must be located on the seat. In view of variations in anatomy that occur between individuals the Board considers a more concrete definition unduly limiting.
3.3 D1 does not explicitly disclose the characterizing feature of claim 1, nor does it provide precise details of the location of the space 5. However, from the shape and placement of the side parts on either side of the open space 5 as explained in the description and shown in figures 2 and 4 in particular, the Board infers that the open space 5 is located at a position forward of the genital area. In use this open space therefore does not allow a users genital area to be accommodated therein, as required by the claim.
3.3.1 As convincingly argued by the Appellant, the side parts, in the form of troughs that fit the contours of the inner thighs, partially raising them to the front (page 3, line 19-21; page 5, lines 5-8), descend some 25-30 cm in the direction of the thighs from the supporting point of the seat bone (page 5, lines 4-5). As may also be inferred from figure 4 the innermost edge of the space 5 is thus located at a relatively large distance in front of the seat bone supporting point, which is commensurate with a location of the space in front of the groin. The desired increase in air circulation in the inner thigh and pelvic area (page 3, lines 8-10) results at least in part from this location (though the Board believes that the down- and forward position of the thighs, which results in a loosening of the clothing in the groin area, may also play a role).
3.3.2 The location of space 5 in D1 forward of the groin of the seated user also is circumstantially supported by document
D2: WO-A-02/063998
submitted by the Appellant. D2 claims a later priority date and is by the same inventors as D1. It teaches a further development of the D1 seat, namely the provision of an open space extending the length of the seat (page 2, lines 10-14), to eliminate genital compression (page 2, lines 16-19). This open space must thus be below the genital area, whereas space 5 in D1, on which D2 improves, is not.
3.4 In conclusion, the location of the open space 5 differs from that required by claim 1 in all requests, as does its function. The seat of claim 1 of each of the requests is therefore novel with respect to the prior art of D1.
4. Request for reimbursement of the appeal fee
4.1 D1 is included in a set of 27 documents first introduced and cited as prejudicial to novelty and inventive step in the second communication issued 31 July 2003 under Article 96(2) EPC. That communication followed an initial communication of 28 February 2003 referring briefly to the positive International Preliminary Examination Report issued in the PCT phase by the same Examiner. The second communication does not provide any discernable chain of reasoning, much less specific passages of the documents and thus fails to meet the requirement of Rule 51(3) EPC that a communication under Article 96(2) contain a reasoned statement.
4.1.1 At the behest of the Appellant (letter of 27 October 2003), the Examining Division issued a further communication, dated 7 November 2003, which included a brief paragraph for each of the then current requests.
4.1.2 In response, the Appellant with letter of 27 February 2004 submitted new main, first and second auxiliary requests. The amendments concerned exclusively the two-part form; the claims remained unchanged in substance. In the accompanying letter, the Appellant gives lengthy and detailed arguments as to why he considers the location of the open space in the seat to be different from that in D1, and why this location is, in his opinion, not obvious.
4.1.3 The Examining Division thereupon, without issuance of a further communication, issued its decision to refuse. The reasons of the decision, apart from minor editorial changes, are identical to those given in the final communication. There is no mention or consideration of the arguments submitted by the Appellant. The refusal, reasons point 4, merely states: this objection has not been overcome by the amended claims as filed with the applicants letter of 25.02.04.
4.2 The Board notes that the final communication of 7 November 2003 is the first communication to contain a reasoned statement in the sense of Rule 51(3) EPC with regard to the sole objection of lack of novelty with regard to D1. D1 was itself introduced by the Examining Division at a late stage in the procedure, which up to that point had led the Appellant to believe in a positive outcome. Under these circumstances, the Appellant, who, as his last set of detailed arguments show, had made a bona fide attempt to address the sole objection raised, could have legitimately expected the Examining Division out of fairness to use the discretion afforded by Article 96(2) EPC to offer at least one further opportunity to address the objection. For this reason alone, the Board considers the refusal after the third communication, which was the first Rule 51(3) EPC compliant communication as regards the ground of lack of novelty, without the issuance of a further communication, to represent a violation of the general principles of good faith and fair proceedings underlying proceedings before the EPO.
4.3 Article 113(1) EPC enshrines a partys right to be heard before a decision is issued against it. In accordance with established jurisprudence of the Boards of Appeal (see J 7/82, OJ 1982, 391 and T 94/84, OJ 1986, 337) this right also guarantees the right to have the relevant grounds fully taken into account in the written decision, that is, see further T 135/96, in the case of a decision rejecting the opposition, the ground(s) for opposition as well as facts, evidence and arguments presented in support of these grounds for opposition. In that latter case, Article 113(1) was seen to be contravened as documents and further alternative arguments based thereon had been disregarded in the decision. In the present Boards view, the above principles apply equally to the consideration of facts and arguments submitted by an applicant in support of his case in decisions in examination proceedings. Article 113(1) EPC will then be contravened where, as is the present case, facts and arguments, which from the appellants submissions are clearly central to his case and which may speak against the decision taken, are completely disregarded in the decision in question.
The facts and arguments submitted with letter of 27 February 2004 deal extensively and exclusively with the feature of the location of the open space, which the Appellant identifies as the sole distinguishing feature vis-à-vis D1, and which thus, in the Appellants view, rendered the claimed subject-matter novel over this prior art. The length and detail of the Appellants arguments show clearly that this was, from the Appellants point of view, a crucial point in the issue of novelty.
There is no evidence in the decision that shows that the examining division took these facts and arguments into consideration. The decision is wholly silent as to these facts and arguments. Nor can it be argued that they have been implicitly considered by the first instance in its decision. Except for some minor editorial amendments, the content of this decision is essentially the same as that of the last communication dated 7 November 2003, issued prior to Appellants detailed letter of reply of 27 February 2004.
By way of example, the first paragraph of the decision dealing with the issue of lack of novelty over D1 having regard to the subject-matter of claim 1 of the main request differs from the first paragraph of the final communication merely by the addition of the word whereby between two parallel portions 3 and said parallel portions 3, being mirror images. In fact, the decision has been drafted as if the examining division had overlooked the facts and arguments submitted with the letter of 27 February 2004.
4.4 In point 4 of its decision, the examining division does refer to the amended claims filed with that letter, by stating that the objection has not been overcome by the amended claims. The sole amendment to the claims was to put them into the two-part form. Clearly, such an amendment of a purely formal nature could not by itself overcome the lack of novelty raised by the examining division. Exactly for this reason the Appellant included in his letter extensive and detailed facts and arguments to demonstrate to the examining division that the feature in the second part of claim 1 was not known from D1. It is all the more reprehensible, that these facts and arguments were then not taken into consideration by the examining division. Article 113(1) EPC is not a formal provision, but rather one of substance. Hence it is not sufficient to observe Article 113(1) merely formally by granting the Applicant the procedural possibility for presenting comments, as this was the case here. This procedural step falls short of its legislative purpose and remains a pure formality, if there is no trace in the file that such comments were indeed read and discussed on the merits, beyond a mere acknowledgement of their existence. In summary, Article 113(1) requires not merely that a party be given an opportunity to voice comments, but more importantly it requires that the deciding instance demonstrably hears and considers these comments.
Accordingly, the board finds that the failure of the Examining Division to mention and to take into consideration these facts and arguments in the decision taken constitutes a substantial procedural violation within the meaning of Rule 67 EPC and for reasons of equity calls for reimbursement of the appeal fee.
5. So as not to deprive the Appellant of the right to have all issues decided before two instances, the Board, pursuant to Article 111(1) EPC, remits the case to the Examining Division for further prosecution based on the currently valid requests. Examination should proceed with regard to the requirements of novelty in view of the remaining citations other than D1, and of inventive step with respect to all citations.
3. The request for reimbursement of the appeal fee is allowed.
I. The appeal is against the decision of the Examining Division posted 23 March 2005 to refuse the European patent application 02018106.1.
Notice of appeal was filed on 20 May 2005 and the fee paid on the same day. The statement of the grounds of appeal was filed on 21 June 2005.
II. In a communication dated 10 July 2003 the Examining Division objected that the airbag device according to originally filed Claim 1 was not novel over D1: US-A-3642303.
III. In its response dated 11 November 2003, the applicant filed amended claims replacing the claims then on file and explained why it considered the subject-matter of Claim 1 as being novel and involving an inventive step.
IV. In a communication dated 23 January 2004 the Examining Division objected that the airbag device according to Claim 1 on file was not inventive over D1, the differentiating feature of the capacity of the lower bag segment when deployed being 60 to 90 liters being a simple selection the man skilled in the art would consider without inventive step.
V. In its response dated 24 May 2004, the applicant maintained Claim 1 and explained further why in its opinion the claimed subject-matter involved an inventive step.
VI. In a communication dated 15 June 2004, the Examining Division introduced two new documents D6: US-A-4243248 and D7: EP-A-1065192 and explained why in its opinion the airbag device according to Claim 1 on file was not inventive over a combination of D1 with D6 or D7.
VII. In its response dated 14 October 2004 the applicant filed an amended Claim 1 replacing the claim then on file with the additional feature of the capacity of the upper bag segment being 20 to 40 liters and explained why the claimed subject-matter was inventive over a combination of D1 with D6 or D7. The applicant explained in particular that D1 did not disclose any capacity for the upper and lower bag segments and that D6 and D7 although disclosing capacities, did so only for airbags having one bag segment, so that these documents could not render obvious the particular capacities as claimed which allow a reliable inflation of both segments at a high speed even with a low-output inflator. As an auxiliary measure the applicant requested oral proceedings to be held.
VIII. Claim 1 reads as follows: