T 0386/17 - Angle of more than 0 degrees

 Key points

• The Board, in the headnote: “A claimed feature that an angle has a magnitude of "more than 0 degrees" does not establish novelty over a prior art disclosure in which the corresponding angle is equal to 0 degrees, since the feature encompasses values closer to 0 degrees than the finite error margin to which the determination of the magnitude of the angle would always be subject, and such values would, in practice, be indistinguishable from 0 degrees”
• The Board: “In the present case, there was a disagreement between the applicant and the Examining Division on the question whether D1 explicitly disclosed an error margin for the inclination angle azimuth (Reasons, point 14.1). The Board does not regard this question as having any importance, since, in any laboratory or industrial operation, it is impossible to measure an angle or align a direction with infinite accuracy, and such operations will always be subject to a small but finite error. This includes (whether explicitly disclosed or not) the alignment of the inclination azimuth with the [001] and [00-1] directions in D1 (or, in the terminology of the present application, the operation of setting psi = 0).”
• As a comment, the holding of the Board is as such limited to angles of/between physical objects.
• I'm not sure if the Board concerns the value 0 degrees in the claim to have the usual rounding off convention i.e. only one significant digit or to have an absolute zero meaning.

T 0386/17

https://www.epo.org/law-practice/case-law-appeals/recent/t170386eu1.html

2.2 Document D1 also discloses a silicon wafer having an epitaxial layer, the main surface of the wafer being inclined from a {110} plane (see e.g. claim 3). In D1 the inclination of the main surface with respect to the (110) plane is aligned with the [001] and [00-1] directions (see D1, paragraph [0039]; Figs. 7 and 8).

The appellant accepts that the arrangement of D1 has, in the terminology of the present application, an inclination angle azimuth (psi) of 0 degrees. Since the claimed range for psi has a lower limit of "more than 0 degrees", the appellant argues that the claimed invention is novel over D1.

2.3 At oral proceedings the appellant confirmed that this feature was seen as the sole difference over D1, and hence, in relation to the question of novelty, the task of the Board is to decide whether a lower limit for the claimed parameter psi defined as "more than 0 degrees" is sufficient to establish that the invention is new within the meaning of Article 54(1) EPC 1973 when the corresponding parameter in the state of the art is 0 degrees.

2.4 In its communication pursuant to Article 15(1) RPBA, the Board cited the decision T 594/01. The case concerned a "process for the preparation of ethylene glycols", and claim 1 of the main request and the first auxiliary request included inter alia the feature that "the process is performed with less than 0.1 wt% of carbon dioxide in the reaction mixture" (Summary of Facts and Submissions, point VI).

2.5 The prior art ("document (1)") disclosed (in "Example No. 4") a similar process for the preparation of ethylene glycols in which the carbon dioxide concentration was equal to 0.1 wt%, and the deciding Board noted that, in relation to the question of novelty, it was "not disputed that the sole issue to be decided is whether there is an overlap between the carbon dioxide concentration ranges defined in any of the requests at issue and the carbon dioxide concentration values disclosed in document (1)" (Reasons, points 4.1.1 and 4.1.2).

2.6 In point 4.1.5 of the Reasons, the Board found as follows:

"Furthermore, although the Board concurs with the Appellant that only an unambiguous disclosure may be considered in assessing novelty, it remains the case that any technical information is addressed to a skilled reader. In that context, it must be pointed out that it is common general knowledge, as shown by document (10) on page 46, that every experimental measurement in quantitative analytical chemistry as well as any result of any physical measurement cannot be dissociated from the margin of uncertainty attached to the measurement. Normally, the uncertainty of a measured experimental value is irrelevant for the assessment of novelty. However, when a specific experimental value is disclosed in an example of the prior art, seeking to distinguish the claimed subject-matter therefrom only in terms of an upper limit required to be 'lower than' the experimental value must fail as the claimed subject-matter is still not distinguishable from the prior art within the margin of experimental error."

As a result, the Board found that the subject-matter of claim 1 of the main and first auxiliary requests lacked novelty over document (1) (Reasons, point 4.1.7).

2.7 In the present case, there was a disagreement between the applicant and the Examining Division on the question whether D1 explicitly disclosed an error margin for the inclination angle azimuth (Reasons, point 14.1). The Board does not regard this question as having any importance, since, in any laboratory or industrial operation, it is impossible to measure an angle or align a direction with infinite accuracy, and such operations will always be subject to a small but finite error. This includes (whether explicitly disclosed or not) the alignment of the inclination azimuth with the [001] and [00-1] directions in D1 (or, in the terminology of the present application, the operation of setting psi = 0).

2.8 A claimed feature that an angle has a magnitude of "more than 0 degrees" does not establish novelty over a prior art disclosure in which the corresponding angle is equal to 0 degrees, since the feature encompasses values closer to 0 degrees than the finite error margin to which the determination of the magnitude of the angle would always be subject, and such values would, in practice, be indistinguishable from 0 degrees.