T 0490/23 - The board inspects the public prior use device

Key points

• The Board, in translation; "During the oral proceedings, the board decided, pursuant to Article 117(f) and Rule 117 EPC, to take evidence by inspecting the prior use subject-matter "Comfort X3" in order to determine the behavior and stability of the belt tensioner flaps under dynamic loading of simulated impact forces from various directions, and thereby answer the crucial question of the suitability of the folding elements as side impact protection. "
• "During the inspection, a direct measurement of the length of the folding element of the "Comfort X3" child seat projecting beyond the outer wall was taken on the prior use subject-matter, which did not appear to be reliably possible based solely on the cited illustrations. The taking of evidence took place in the presence and with the participation of the parties. For the decision to take evidence and the results of the inspection, reference is made to the minutes of the oral proceedings."
• "The visual inspection led to the following results: ..."
• "For the reasons stated above, the Board does not consider the belt tensioner flap of the "Comfort X3" child seat to be suitable as impact protection within the meaning of feature M1.2 of granted claim 1. Features 1.3 to M1.5, which require the presence of side impact protection according to feature M1.2, are also not derived from this prior use."
• Regarding other features of claim 1: As can be seen from images IMG_0789 and IMG_791, attached to the minutes of the oral hearing, the entire extension of the flap element of the belt tensioner flap is 14.3 cm. This is undisputed."
• " The subject-matter of granted claim 1 is therefore novel over the prior use "Comfort X3", as correctly found by the Opposition Division."

EPO

 

The link to the decision can be found after the jump.

https://www.epo.org/de/boards-of-appeal/decisions/t230490du1