T 1442/16 - Embodiments (II)

Key points

• In this examination appeal, the Board considers claim 1 of AR IV to lack basis in the application as filed.
• The Board: “However, there is no embodiment in the application as originally filed with both of these features together. The only embodiment with a three-dimensional heart model is the one illustrated in Figure 3 and explained on page 8, lines 8 to 32. In this embodiment, the values of the ECG data are not connected [in a different way than now specified in claim 1].
• “The appellants argued that the board's reading of the application was too literal. It was implicit from the overall style of the application that additional features were gradually introduced using the language "in another embodiment", "in still another embodiment" or "in a further embodiment". This did not mean that the features from one of these "embodiments" could not be combined with those of another "embodiment". The board cannot accept such a defence. Personal style does not give applicants a carte blanche to mix and combine features from different embodiments as they please.”
• The Board also deals with the issue whether a feature of the claimed user interface is technical or not, finding that it is not. I don't discuss that aspect here.

EPO T 1442/16 - link




2. Auxiliary requests IV, V and VI

2.1 The method according to claim 1 of auxiliary requests IV, V and VI comprises inter alia both of the features of displaying a three-dimensional heart model from the centre of which the axes of the multiaxis diagrams extend, and displaying polygonal patterns formed by connecting the plurality of values of the ECG data together with the multiaxis diagrams. However, there is no embodiment in the application as originally filed with both of these features together. The only embodiment with a three-dimensional heart model is the one illustrated in Figure 3 and explained on page 8, lines 8 to 32. In this embodiment, the values of the ECG data are not connected to form polygonal patterns, but rather to form "three dimensional reconstructions" in form similar to ellipsoids.

2.2 The appellants argued that the board's reading of the application was too literal. It was implicit from the overall style of the application that additional features were gradually introduced using the language "in another embodiment", "in still another embodiment" or "in a further embodiment". This did not mean that the features from one of these "embodiments" could not be combined with those of another "embodiment". The board cannot accept such a defence. Personal style does not give applicants a carte blanche to mix and combine features from different embodiments as they please.