T 0144/17 - Visual inspection

Key points

• This is an example of a case wherein the OD carried out a visual inspection of the evidence of the alleged public prior use.
• “According to the appealed decision and to the "Minutes Inspection of the Seat Altea" the Opposition Division visually inspected the vehicle”
• The inspection took place on the car park of the EPO in Berlin.

Minutes of the taking of evidence by the OD

EPO T 0144/17 -  link

Reasons for the Decision

1. The appeal is admissible.

2. The subject-matter of claim 1 is new (Article 54 EPC) over the public prior use "Seat Altea", at least feature M7 not being derivable therefrom.

According to the appealed decision and to the "Minutes Inspection of the Seat Altea" the Opposition Division visually inspected the vehicle, which "showed a boot with boot floor, two sides, shelves on each side and slits in the shelves. A foldable luggage compartment cover was provided. The cover could be folded and inserted into the slots as well as between the front end of the shelves and the rear of the back seats" (see said Minutes). Thus, the Opposition Division noted that the load platform could be folded and inserted in a vertical position into said slots (corresponding to Respondent's aforementioned first configuration; see also appealed decision, Facts and Submissions, points 7.5.3, 7.5.6), the folded load platform being in a vertical and not tilted, though stable position (see decision, Facts and Submission, point 7.5.6). This is confirmed in point 3.1.2 of the "Reasons for the decisions", stating that "while the nice fit of the load platform in the grooves allowed the load platform to be maintained in a stable position, this position was not tilted with respect to the floor".

It ensues that the Appellant's contention implying the load platform being configured in a slightly tilted, stable position is unfounded.

Indeed, the Opposition Division has verified by visual inspection that in said first configuration (i.e. folded platform inserted into the grooves) the folded load platform forms a vertical angle with the trunk's floor, any deviation from said vertical angle -if at all present- necessarily being within a very small range due to a minimal play between the platform and the grooves, and therefore being negligible and insignificant. Any statement to the contrary should therefore be corroborated by further evidence proving that the Opposition Division erred. No such evidence was provided by the Appellant.

In said second configuration (i.e. wherein only a portion or section of the load platform is located (with play) in the grooves) evidently (and by the Appellant's own admission) the (first) portion of the load platform inserted into the grooves shows a tilted position with respect to the trunk's floor. The other portions or sections of the load platform (being connected in a foldable manner to said first portion) are freely disposed on the trunk's floor, hanging down freely from the (folding edge) of said first portion, necessarily forming further inclined angles with respect to the floor. Hence, the load platform in its entirety does not form a tilted configuration, the entire load platform not having an overall planar shape or conformation in this situation, sections or portions thereof having different inclination angles (in relation to the floor). Moreover, for these same reasons this second configuration likewise cannot be regarded as being stable.

It is therefore concluded that feature M7 is not known from the prior use.