22 Jan 2018

T 0643/15 - Brief and concise

Key points

  • This decision in opposition appeal (of Board 3.2.01) is rather brief (only 3 paragraphs). The appeal was also disposed of quickly (Notice of appeal 25 March 2015, oral proceedings Board 10 November 2017). The Board disagrees with one novelty attack and one inventive step against the claims as granted (these presumably being the reasons for the OD to revoke the patent). The Board remits the case for consideration of the ground of opposition of Article 100(c) EPC. The OD had apparently not considered that ground (even though the opposition had started already in 2011). 
  • update: Even shorter is  T 1700/15. Just 156 words to decide on A83 and A13(2) in an opposition appeal.

    EPO T 0643/15 -  link

Reasons for the Decision
1. The appeal is admissible.
2. The subject-matter of claim 1 is new over A3, for the aforementioned feature (i) (i.e. "said upper panel assembly and each of said upper spar chords being mutually connected and formed from a metal material") is not known from A3 (Article 54 EPC). The Board takes the view that the term "formed from a metal material" (in the given context of claim 1) cannot be construed as encompassing metallic composite materials as alleged by the Respondent. For the purpose of assessing novelty and inventive step, the terms of the claim should be given their broadest meaning, at least insofar as a technically sound and sensible interpretation is thereby obtained. Nevertheless, the claim's construction should not be incompatible or be at odds with the general teaching of the invention as resulting from the overall disclosure in the patent specification (EP-B). In the present case it is explicitly stated in (or clearly derivable from) several passages in EP-B that the invention relates to "aircraft wings having both composite and metal panels" (paragraphs [0001], [0002], [0003], [0004], [0005], [0012]). In paragraph [0005] it is further specified that the wing assembly includes an "upper panel ... formed from a metal material" and a "lower panel ... formed from a composite material", wherein the metal material is stated to be "aluminium, titanium or any other suitable material", and the composite material is stated to be "a carbon fiber reinforced plastic (CFRP) material or other suitable composite material". It ensues from these quotations that the terms "composite material" and "metal material" are used in EP-B as constituting opposed and mutually exclusive alternatives, in agreement with the general teaching of the invention, i.e. to reduce weight (employing specific composite materials where appropriate) and save costs (by replacing composite material panels primarily subjected to compression load with metal panels having better compression performance (EP-B, [0002], [0013])). For these reasons, bearing in mind that a patent should be construed by a mind willing to understand, it would run contrary to the teaching of the invention to construe the term "formed from a metal material" as encompassing metallic composite materials.
3. The subject-matter of claim 1 is not rendered obvious for the skilled person by prior art A2 and A1. The skilled person, starting from A2 and aiming at reducing costs while optimizing weight and compression load performance, would retain A1, which proposes manufacturing the wing's upper panel from metal (e.g. aluminium, titanium; see upper shell 6, figure 2, column 3, lines 20-30) and the lower panel from a composite material (column 3, lines 30-36). However, even on the assumption that the skilled person would combine A2 and A1, this would not directly lead to the subject-matter of claim 1, for A1 does not disclose or suggest forming the upper spar chords from metal too (see feature (i)). Moreover, the person skilled in the art would not obviously or necessarily form the upper spar chords from metal, compression loads affecting primarily and mainly the upper shell or upper panel assembly (see A1, upper panel 6; column 3, lines 25-27) and, like tensile loads, being anyway effectively countered by the wing's support structure, which is usually made of metal. Also, depending on the composite material used for the upper spar chords, a weight reduction is usually advantageously obtained as compared to upper spar chords made of metal (even though at greater costs). For these reasons the Board considers that the Respondent has not provided convincing arguments that for the skilled person feature (i) (including upper spar chords made of metal) would result in an obvious manner from the combination of A2 and A1 (Article 56 EPC).
4. The Board decided to remit the case to the department of first instance for further prosecution (Article 111(1) EPC). The appealed decision is exclusively based on the Opponent's objections under Article 54 EPC and Article 56 EPC, the ground of opposition under Article 100(c) (as submitted by the Opponent during opposition proceedings) having not been considered. This ground of opposition was not discussed by the Appellant during written appeal proceedings either, the Appellant having concentrated in its submissions on the confutation of the reasoning in the appealed decision, seeking a review of the decision. Consequently, it was deemed not to be appropriate to start a new debate on a completely different issue during oral proceedings at a very late stage in appeal proceedings.
For these reasons it is decided that:
The decision under appeal is set aside.
The case is remitted to the department of first instance for further prosecution.

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