T 0651/12 - Not merely abstract mathematical methods

Key points

• " Meant are in Article 52(2)(a) EPC, in the board's view, merely abstract mathematical methods, ie calculations for the sake of the calculation. In the present case, however, the outcome of the calculation is used for a technical purpose, namely to display information in an ergonomically improved manner." 
• " Generally, the view is taken that the reference to presentations of information in Article 52(2)(d) EPC is meant to relate exclusively to the information content and not to the way the information is presented."
• "In the board's opinion, ergonomics, understood as the applied science of refining the design of products to optimize them for human use, in the context of the map display of the present case, is a technical field. Displaying the three-dimensional bird's eye view map is, thus, considered to provide a technical solution to a technical problem."

 T 0651/12 -  link

Reasons for the Decision

1. The appeal is admissible.

2. Supplementary search

As noted above, the Supplementary European Search Report contained the following statement:

"The technical aspects identified in the present application (Art. 92 EPC) are considered part of common general knowledge. Due to their notoriety no documentary evidence is found to be required. For further details see the accompanying Opinion and the reference below. XP002456252"

The reference to an accompanying Opinion is of no use as no Opinion is on file.

The reference to document XP002456252 is confusing as according to its heading it concerns a statement in accordance with a notice from the EPO concerning business methods. The case at issue, however, clearly does not concern any business method.

Moreover, according to the statement, the claimed subject matter related to processes comprised in the list of subject-matter and activities excluded from patentability under Article 52(2) and (3) EPC. However, it remains unclear to which excluded subject-matter or activities the search division considered the claimed subject-matter to be related to and accordingly why no documents were cited in the Supplementary European Search Report.

3. Technical subject-matter

3.1 According to the decision under appeal, claim 1 related to a map display apparatus, considered to be technical, and further comprised the steps of a non-technical method essentially defining an abstract calculation on the basis of modelled map data.

T 1370/11 - Reducing computing time

EPO Headnote
" Reduced execution time of a computer-implemented method - not in general a technical effect "
Key points

• The Board finds that a computer-implemented method cannot be found to show an inventive step for the sole reason that a slower computer-implemented method exists in the prior art. Therefore, for a computer-imple­men­ted method or a computer program to be patentable it must be estab­lished that it has a "further" tech­nical effect and solves a technical problem independently of its absolute or relative computing time. 

EPO T 1370/11 - link

Reasons for the Decision

...

The invention

2. In general, the application refers to software applications written in terms of "objects" and their "proper­ties". [...]

9. Regarding a), the board accepts that the claimed caching method is not known from D2 and has the effect that unne­cessary evaluation or re-evaluation of an expression can be avoided. [...]

9.2 However, for the sake of argument, it is assumed that the claimed cache does indeed have the alleged advantage of reducing the computing time required.

Is the reduction of computing time a technical problem?

T 0099/13 - Parameter and basis

Key points

• Claim 1 is amended to specify the measurement temperature for the viscosity range mentioned in the claim (i.e. adding "at 25 °C").
• The Board: "[It] is important to recall, in line with the case law [], that the assessment of the requirements of Article 123(2) EPC should be done on the same basis as for all other patentability issues (e.g. novelty and inventive step), namely from the standpoint of the skilled person on a technical and reasonable basis avoiding artificial and semantic constructions." 
• The value could be based on the examples wherein it was mentioned that the viscosity measurements were accomplished at 25°C.

T 0099/13 - link 

Main request - amendments

2. With regard to claim 1 of the main request, the disputed point is whether the specification of the temperature for the viscosity condition ("at 25°C") is directly and unambiguously derivable from the application as filed.

T 0034/14 - Apportionment of costs

Key points

• The Board recalls that " an opposition division's decision on apportionment of costs is a discretionary one that should be overruled only if the board comes to the conclusion either that the first instance department exercised its discretion in accordance with the wrong principles or in an unreasonable way, and has thus exceeded the proper limits of its discretion (G 7/93; point 2.6)." 

T 0034/14 - link

Reasons for the Decision
Apportionment of costs

5. The opposition division decided to apportion costs against appellant 2.

5.1 This decision was based on the following sequence of events: in the opposition proceedings, appellant 2 filed a new document D17 two days before the oral proceedings scheduled for 18 April 2013. During these oral proceedings, the respondent requested that the oral proceedings be adjourned in order to have sufficient time to prepare a declaration and file experimental evidence if D17 was admitted into the proceedings. The opposition division decided to admit D17 into the proceedings and consequently adjourned the oral proceedings to 10 October 2013, as requested by the respondent.

5.2 In its decision, the opposition division essentially reasoned as follows: there had been no abuse of procedure by appellant 2, but its late filing of D17 was irresponsible and gave rise to unnecessary costs for the respondent. However, as one of the present inventors had co-authored D17, the respondent had been involved in writing it, and must therefore have known that it existed, and what was in it. In view of this, it was equitable for appellant 2 to bear only the respondent's travel and accommodation costs for attending the second oral proceedings held on 10 October 2013.

5.3 Appellant 2 requested that this decision be set aside, arguing that the respondent had been familiar with D17 well before the first oral proceedings, and its request for adjournment of the first oral proceedings had therefore not been justified.

5.4 The board does not agree. The respondent did not ask for an adjournment of the oral proceedings in order to familiarize itself with D17 but to have sufficient time to prepare a declaration or file experimental evidence in respect to the appellant's arguments relating to it. This was a justified request, since even if the respondent was familiar with D17 it did not need to file any submissions about it until it was brought into the proceedings by appellant 2. It was therefore perfectly reasonable for the opposition division to allow the respondent's request for adjournment, and in consequence to award costs against appellant 2.

Incidentally, an opposition division's decision on apportionment of costs is a discretionary one that should be overruled only if the board comes to the conclusion either that the first instance department exercised its discretion in accordance with the wrong principles or in an unreasonable way, and has thus exceeded the proper limits of its discretion (G 7/93; point 2.6).

5.5 Appellant 2 cited decisions T 330/88 and T 336/86, which however are not relevant to the present case:

5.5.1 In the case underlying T 330/88, a new document had been filed by the opponent during oral proceedings before the opposition division. After the oral proceedings, the proceedings were continued in writing. In subsequent appeal proceedings, the board held that the appellant (proprietor), who had requested an apportionment of costs, had had sufficient time to consider the late-filed document during the oral proceedings before the opposition division, which had lasted for two consecutive days. The board therefore rejected the appellant's (proprietor's) request for apportionment of costs. This is different from the present case, where there was not enough time during the oral proceedings to react properly to late-filed document D17.

5.5.2 In T 336/86, after the opponent had filed a new patent publication during the oral proceedings before the opposition division the proceedings were continued in writing. In the subsequent written proceedings, the proprietor requested the revocation of its patent and an apportionment of costs, since the oral proceedings could have been avoided if the opponent had submitted the new patent publication earlier. The board rejected the request for apportionment of costs basically on the grounds that the proprietor was also the holder of the late-filed patent. The board held that the failure of both parties to exercise all due care over this document had resulted in oral proceedings which proved to be superfluous and that in these circumstances it was not justified to award costs to either of the parties.

That case too is different from the present one because the new document was so highly relevant that the patent could no longer be defended, and the respondent (proprietor) actually requested its revocation. Hence, while it may be true that if the proprietor had exercised due care, it would have taken this document into account even before it was filed by the opponent, the same is not necessarily true in the present case.

5.6 The board therefore in the present case found that the opposition division's decision on costs was justified.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside as far as the opposition division had found that taking into account the amendments made by the patent proprietor during the opposition proceedings the patent and the invention to which it relates met the requirements of the Convention.

2. As regards the decision on apportionment of costs, the appeal of appellant 2 is dismissed.

3. The patent is revoked.

J 0012/15 - Oral proceedings and further processing

Key points

• A response was filed with further processing, however, the request for further processing was refused by Examining Division the because the response was considered to not be a substantive response. No oral proceedings were held before the ED, although the response had included: " Oral Proceedings are requested in the event the Examiner is minded to refuse the application". The Board finds that  the request for oral proceedings also covered the case where the Examining Division was minded to refuse the request for further processing. Not holding oral proceedings therefore forms a substantial procedural violation. The decision under appeal is set aside and the case is remitted for further decision on the request for further processing. 
• I note that the preliminary opinion of the Board was that the ED was correct in refusing the request for oral proceedings. 
• The Legal Board of Appeal is of course competent to decide on a refusal of a request for further processing. 

J 0012/15  - link

Summary of Facts and Submissions
IX. On 27 March 2015 the appellant filed a letter, the first line of which states that it is by way of a response to the communication of 13 June 2014. The appellant requested further processing under Article 121 EPC. In this letter the appellant made the following substantive remarks concerning the Examining Division's communication of 13 June 2014:

"...the Applicant respectfully disagrees, especially with regard to claim 12.

It is believed that the invention as currently claimed is both novel and involves and (sic) inventive step in accordance with Articles 54 and 56 EPC, and the claims should be allowable.

Reconsideration of the application is requested, and Oral Proceedings are requested in the event the Examiner is minded to refuse the application".

X. The Examining Division decision of 30 July 2015 rejected the request for further processing and gave the following reasons for its decision:

"1) Under current EPO practice, as decided in the 50th PPC Meeting of 24-25 September 2009, a reply to a communication from the Examining Division without any substantive observations or amendments, does NOT constitute a reply to a communication under Article 94(3) EPC.

2) The omitted act was not filed within the time limit set in Article 121 EPC.

3) The request for further processing is therefore rejected".

XI. The appellant filed an appeal against this decision. The arguments of the appellant as set forth in its Grounds of Appeal may be summarised as being that first, the decision of the Examining Division of 30 July 2015 was not reasoned and was therefore contrary to Rule 111(2) EPC; second, the appellant had completed the omitted act by filing its comments under cover of the letter dated 27 March 2015. Although these comments may have been brief, the Appellant had no possibility of giving a more detailed response given that the Examining Division's communication of 13 June 2014 was not itself reasoned.



XII. The Board issued a communication setting out its preliminary, non-binding view on the case. This communication raised the issue of whether the appellant was requesting oral proceedings before the Examining Division only in the case of the Examining Division being minded to reject the application, or also in the case of the Examining Division being minded to reject the request for further processing. In its reply to this communication the appellant stated that its request also covered the case where the Examining Division was minded to refuse the request for further processing.

Reasons for the Decision

1. The appeal is admissible.


2. In its letter dated 27 March 2015 the appellant requested oral proceedings before the Examining Division in the event that "...the Examiner is minded to refuse the application...". No oral proceedings were held and the Examining Division refused the request for further processing.


3. The Board is of the view that this request for oral proceedings before the Examining Division is open to two interpretations.


4. The first interpretation is that the appellant's request for oral proceedings could be understood to be conditional only on the event that the Examining Division was minded to refuse the application, the appellant not requesting oral proceedings in the event that the Examining Division was minded to refuse the request for further processing.


5. The second interpretation is that the appellant intended its request for oral proceedings also to cover the case where the Examining Division was minded to refuse the request for further processing. In support of this interpretation is the fact that a refusal of further processing in this case would have identical effects to a decision refusing the application. In addition the appellant has confirmed this second interpretation as being its intention.


6. In the light of these factors the Board is of the opinion that the appellant intended its request for oral proceedings before the Examining Division also to cover the case where the Examining Division was minded to refuse the request for further processing.


7. The right of a party to oral proceedings in examination, opposition and appeal procedures is set out in Article 116 EPC. Accordingly, an adverse decision issued without granting the aggrieved party's request for oral proceedings must be declared void ab initio and without legal effect (see T 19/87, OJ EPO 1988, 268,Reasons point 3; T 766/90, Reasons point 2.1; and the "Case Law of the Boards of Appeal", 7th edition 2013, III.C.1, page 501 et seq.).


8. From its examination of the file, the Board has not been able to find a clearly expressed intention on the part of the appellant to withdraw its request for oral proceedings before the Examining Division. Silence on the part of the appellant cannot be interpreted as withdrawal of the request for oral proceedings. The Board therefore currently assumes that this request is still valid and was therefore also valid at the time of the contested decision (see T 879/92, Reasons points 2 and 3; "Case Law of the Boards of Appeal", 7th edition 2013, III.C.2.3, page 506).


9. The decision of the Examining Division dated 30 July 2015 must be set aside as void and of no legal effect. The appellant was entitled to oral proceedings before the Examining Division. Accordingly, the failure by the Examining Division to hold such oral proceedings constituted a substantial procedural violation which justifies the reimbursement of the appeal fee under Rule 103 EPC.


10. In the light of the above finding and the appellant's statement regarding the conditional nature of its request for oral proceedings before the Board, (see point XIII above), there is no reason for oral proceedings before the Board to take place.


Order


For these reasons it is decided that:


1. The decision under appeal is set aside.


2. The case is remitted to the department of first instance for the holding of oral proceedings to consider the appellant's request for further processing set out in its letter of 27 March 2015, and for any subsequent further prosecution.


3. The appeal fee shall be reimbursed in full.

T 0404/13 - First filing and transfer

Summary

Claim 1 of the main request has a disclaimer. In this case, the allowability of the disclaimer depends on the date of transfer of the priority application of D1.

At the outset, the facts of the case are similar to  T 788/05 (not cited in the decision). In that decision, the Board held:
In the case of D1 in which two co-applicants (Terumo and Tokin) are present, this means that the priority right belongs simultaneously and jointly to the two applicants, who thus constitute a legal unity unless one of them decides to transfer his right to the other applicant, who then becomes his successor in title and this before the filing of the later application. Since no evidence for such a transfer was submitted to the Board, D1, independently of the question of the same invention, could only serve as a basis for claiming a priority right for the filing of a later application designating both applicants. But since the present application was only filed by one applicant (Terumo), D1 could not represent the "first application" within the meaning of Article 87(1) EPC.

The patent in suit claims as priority date 16 April 2003 based on priority application DE '489.3 and has filing date 6 April 2004.
D1 is a PCT application with publication date 3 July 2003 and filing date 23 December 2002.

Claim 1 of the patent has a disclaimer which is only allowable if D1 is a prior right. D1 forms a prior right (Article 54(3) EPC) only if the priority claim of the patent is valid, otherwise is it prior art. This requires that the priority application DE '489.3 is the first filing. However, D1 claims the priority of a German priority application DE ' 586.9, wherein the anticipating embodiment was also disclosed. This application was transferred to the applicant of the patent in suit before or after the filing date of the priority application DE '489.3 of the present application. The transfer was entered into the German patent register only on 1 July 2003, but the takeover of (the relevant patent portfolio of) the company filing DE ' 586.9 (and D1) by the present applicant had take place already in 2002.

It is not in dispute that the patentee can not benefit of Article 87(4) EPC.

The patentee argues that at the claimed priority date, there was no identity of applicants between DE '489.3 and DE ' 586.9, such that the priority application DE '489.3 is the first filing for the invention.

It does not seem to have been disputed that if the priority right of DE ' 586.9 was transferred before the filing of DE '489.3, the priority is invalid.

The Board holds that de decisive moment is the transfer of the actual right and not the entry into the register of the transfer, because the registration is not constitutive for the transfer.
Moreover, the date of registration of the transfer is no evidence of the actual date of transfer.

The Board note that, as a rule, in case of take over of business units of a company, the patent applications are transferred simultaneously with the business assets. A further indication of the transfer is that DE '489.3 refers to DE ' 586.9 and has to a large extent identical text.

The Board then decides that the burden of proof lies with the patentee to show ("glaubhaft zu machen") that the transfer of DE ' 586.9 had occurred only after the claimed priority date.
As a note, this decision gives raises to some interesting questions about the standard and burden of proof. Possibly, the Board had in effect found that the opponent had presented sufficient evidence for an early transfer and the patentee was given the burden for a rebuttal.

The patentee had not provided such evidence. Hence, the transfer is assumed to have been effected before the priority date, and therefore DE ' 586.9 is considered as the first filing and the priority date can not be validly claimed. Hence, D1 is prior art (Article 54(2) EPC), the disclaimer is not allowable (G 1/03) and the main request does not comply with Article 123(2) EPC.

EPO  T 0404/13 - link

Entscheidungsgründe

[...]

Hauptantrag - Änderungen (Artikel 123(2) EPÜ)

6. Der Gegenstand des Anspruchs 1 wurde gegenüber der ursprünglichen Fassung, sowohl durch die Aufnahme von ,,positiven Merkmalen", als durch zwei Disclaimer geändert. Es ist nicht strittig, dass diese zwei Disclaimer in der ursprünglich eingereichten Fassung der Anmeldung nicht offenbart sind. Somit ist es zu überprüfen, ob diese Disclaimer die in den Entscheidungen der Großen Beschwerdekammer G 1/03 und G 2/03 festgelegten Kriterien für ihre Zulässigkeit erfüllen.

T 1738/12 - Not admitting is procedural violation

Key points

• The decision of the OD to not admit experimental reports into the proceeding which were filed after the final date for making written submissions (Rule 116), forms a substantial procedural violation.
• "[The] opposition division failed to give any consideration to the essential criterion as to the prima facie relevance of the data presented in [the reports]. ... Finally, although [the opponent] objected to the late-filing of [the reports], it is not apparent from the content of file that the opponent actually requested adjournment of oral proceedings, or an opportunity to conduct further tests." 

EPO T 1738/12 - link

Reasons for the Decision

1. The appeal is admissible.

2. Substantial procedural violation; reimbursement of the appeal fee

2.1 Pursuant to Rule 103(1)(a) EPC, the appeal fee shall be reimbursed in full if the board deems the appeal to be allowable (cf. points 6 and 7 below), and a substantial procedural violation has occurred which renders the reimbursement equitable.

In the present case, the alleged substantial procedural violation relates to the decision of the opposition division not to admit two test reports into the proceedings, namely, documents (17) and (18), which were submitted after the final date for making written submissions in preparation for the oral proceedings pursuant to Rule 116 EPC.

T 0251/15 - No re-establishment

Key points

• Re-establishment remains unavailable for the opponent who misses the time limit for filing a notice of appeal. 

 EPO T 0251/15 - link 

Reasons for the Decision

1. According to Article 108, first sentence, EPC the notice of appeal has to be filed within two months of notification of the decision. The second sentence of this provision stipulates that the notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid.

2. In the present case, the decision under appeal was issued on 22 December 2014 and the time limit specified in Article 108, first sentence, EPC expired on 2 March 2015. Since the appeal fee had not been paid within that time limit (it was paid on 11 March 2015) the appellant [opponent ] was informed - according to Rule 112(1) EPC - by communication from the registrar of the Board of Appeal dated 21 April 2015, that the appeal was deemed not to have been filed pursuant to Article 108, second sentence, EPC. The appellant did not question this finding by applying for a decision on that matter pursuant to Rule 112(2) EPC. Thus, since the above finding became final the appeal is deemed not to have been filed, unless the appellant's request for re-establishment is allowed.

3. Admissibility of the request for re-establishment

Article 122(1) EPC stipulates that the right to re-establishment of rights is available for an applicant for or proprietor of a European patent. However, according to decision G 1/86 (OJ EPO 1987, 447) an appellant as opponent may have its rights re-established under Article 122 EPC if it has failed to observe the time limit for filing the statement of grounds of appeal. It follows from the reasons of the decision that the applicability of Article 122(1) EPC is limited to cases where an appellant-opponent missed the time limit for filing the grounds of appeal (see in particular points 7 to 11 of the Reasons). Thus, an appellant-opponent who misses, as in the present case, the time limit for filing the notice of appeal and/or for paying the appeal fee, is not entitled to have his rights re-established (cf. T 210/89, OJ EPO 1991, 433; cf. T 323/87, OJ EPO 1989, 343, T 128/87, OJ EPO 1989, 406). In such a case, an appellant-opponent cannot rely on the principle of "equality before the law". His legal position differs from the position of an applicant (or patentee)-appellant (cf. G 1/86, point 5 of the Reasons.)

Having taken into account the arguments presented by the appellant, the Board sees no reason to deviate from the established case law. According to G 1/86, points 8 and 9 of the Reasons, the patent proprietor has a legitimate interest in not being left uncertain as to whether a legally effective appeal has been filed within the two-month time limit under Article 108 EPC. By filing the notice of appeal and by paying the appeal fee within the two-month time limit of Article 108 EPC the opponent has validly made known his intention of having the Opposition Division's decision set aside. According to Article 108, second sentence, EPC the notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid. Thus, if the appeal fee has not been paid within the two-month time limit of Article 108 EPC, the patent proprietor's uncertainty no longer exists, since no appeal is considered to be in existence and the appeal procedure has not been validly set in motion. Thus, the Board does not accept the appellant's argument that the patent proprietor's uncertainty no longer existed in the present case merely due to the fact that the notice of appeal had been filed in time irrespective of the belated payment of the appeal fee. Thus, contrary to the appellant's argument, there is a sound reason that the late payment of the appeal fee and the failure to file the statement of grounds within the four-month time limit of Article 108, third sentence, EPC are treated differently as far as the issue of re-establishment of rights is concerned. The possibility for opponents to have their rights re-established in cases where the time limit for filing the statement of grounds is missed is based on the existence of a legally effective appeal, i.e. on the fact that the appeal procedure has validly been set in motion. However, when the appeal fee has not been paid in time, there is no appeal in existence and the patent proprietor has a legitimate interest in being able to rely on the fact that the Opposition Division's decision has become final.

4. Referral of a question to the Enlarged Board of Appeal

4.1 Under Article 112(1) EPC, the Board of Appeal, in order to ensure uniform application of the law or if a point of law of fundamental importance arises, and possibly of its own motion, shall refer any question to the Enlarged Board of Appeal if it considers that a decision is required for the above purposes.

4.2 As shown under point 3.1 above there is established case law on the question at hand which is based on decision G 1/86 of the Enlarged Board of Appeal. Moreover, the appellant admitted during the oral proceedings before the Board that deviating case law had not been found. In addition, the Board finds, as shown under point 3.2 above, that there is no lacuna in the reasoning of the decision G 1/86 which could be filled by answering the question which the appellant requested to have referred to the Enlarged Board of Appeal.

4.3 In that context the appellant noted that the question raised in the interlocutory decision of 24 February 2014 in T 2017/12 (G 2/14, cf. also the interlocutory decision of 20 February 2014 in T 1553/13 and G 1/14) should be taken into account. The question whether an appeal is inadmissible or deemed not to have been filed, where a notice of appeal is filed but the appeal fee is paid after expiry of the time limit of Article 108 EPC, first sentence, EPC could be of relevance for the present case (cf. Facts point VIII.).

4.4 The Board does not share that view for various reasons. First, the question raised in the aforementioned proceedings does not deal at all with the issue of re-establishment of rights requested by an appellant-opponent. Second, the facts underlying the interlocutory decisions in the above cases are different from the situation in the case at hand. In the present case, there is no pending question whether the appeal is inadmissible or deemed not to have been filed, since the appellant was informed - according to Rule 112(1) EPC - by communication from the registrar of the Board of Appeal dated 21 April 2015, that the appeal was deemed not to have been filed pursuant to Article 108, second sentence, EPC. This finding had become final since the appellant did not apply for a decision on that matter pursuant to Rule 112(2) EPC. Consequently, no appeal is considered to be in existence when the appeal procedure has not been validly set in motion, which was the decisive reason in G 1/86 allowing re-establishment of rights into the four-month period (cf. point 3.2).

4.5 Thus, the Board came to the conclusion that a referral to the Enlarged Board of Appeal was not justified.

5. Consequently, in view of the above, the Board comes to the conclusion that the request for re-establishment of rights is inadmissible. Thus, the appeal is deemed not to have been filed as noted by communication pursuant to Rule 112(1) EPC dated 21 April 2015.

Order

For these reasons it is decided that:

1. The request to refer a question to the Enlarged Board of Appeal is refused.

2. The request for re-establishment of rights is refused.

3. The appeal is deemed not to have been filed.

4. The appeal fee is to be reimbursed.

T 1073/13 - Cognitive content

Key points

• " [The] board believes that this distinguishing feature corresponds to presenting cognitive content which merely addresses the user's mental process [] rather than credibly assisting the user in performing the configuration of the technical device by e.g. presenting the device's current operating state within a continued and guided human-machine interaction process (see e.g. T 336/14, reasons 1.2.5). Accordingly, it relates to a presentation of information as such in the sense of Article 52(2)(d) EPC and hence to a non-technical feature, which has to be disregarded in the assessment of inventive step according to the established jurisprudence of the Boards of Appeal (see e.g. G 3/08). Hence, no inventive step can be acknowledged for the subject-matter claimed (Article 56 EPC)."  (internal references omitted)

EPO T 1073/13 - link

VI. Claim 1 of the main request reads as follows:

"A method for preventing an inadvertent configuration of an electrical device provided with an infrared interface (30), comprising the steps of:

activating one or more infrared buttons (31, 32, 33, or 34) provided on the infrared interface (30) in order to configure the electrical device;

indicating an infrared button sequence on a display (40), wherein said button sequence includes activation of at least a first infrared button (31, 32, 33, or 34) and at least a second infrared button (31, 32, 33, or 34) of the one or more infrared buttons (31, 32, 33, or 34) used to configure the electrical device, (...)

T 2227/11 - Internet citation

Key points

• " In particular, the appropriate standard of proof for internet citations is the balance of probabilities." 
• About the standard of proof in general: " The EPO standard of proof is generally the balance of probabilities. By way of exception, the standard of proof of the balance of probabilities is shifted to a standard of proof beyond reasonable doubt mainly in opposition where only one party has access to information eg concerning an alleged public prior use. The difficulty of the other party to gain access to information in support of no such public prior use having taken place, allowing it to counter-argue, has caused the case law to tend in this case toward expecting the public prior use to be proved beyond reasonable doubt"
• Compare, about public prior use, T 2237/14

EPO T 2227/11 - link 

Reasons for the Decision

1. Admissibility of the appeal

With letter of 13 September 2011, the applicant was inter alia informed that:

the first decision refusing the application dated 11 May 2011 had been cancelled,

the second decision refusing the application dated 28 July 2011 was valid, and

the time limits as mentioned on Form 2019 (ie with respect to Artcile 108 EPC) were calculated from the second decision.

T 2237/14 - Public prior use by inventor

Key points

• An unusual case of a public prior use by the inventor, based on the priority document expressly stating that a prototype was shown at  meeting with a company. 
• The decision involves alleged public prior use by the inventor. The Board states that
  "For a prior use to be considered established, this has to be the case beyond any reasonable doubt (T 0782/92)."
  
  
  T 2237/14 - link

Reasons for the Decision

1. The appeal is admissible. The filing of the notice of appeal and the payment of the appeal fee between the announcement of the impugned decision at the oral proceedings and its notification by post is not detrimental to the admissibility of the appeal (T 0389/86, OJ EPO 1988, 87).

2. The intervention is admissible.

T 1983/14 - Inescapable priority trap

EPO Headnote

• Article 123(3) EPC prevents the removal, after grant, of a problematic, limiting feature. The problem described in G 1/93 was a violation of Article 123(2) EPC. In the present case, it is lack of novelty due to loss of priority. See point 5.3 of the reasons.

Key points

• " The Board considers the most promising basis for [the feature alleged to lack priority] to be the statement on page 4, lines 12 to 13 of the priority document: "[a]lternatively, the top-up software control module has means for printing the top-up code onto a customers receipt and adding the value of the top-up to the total receipt". Here, "adding [...] to the total receipt" could, indeed, refer to a running total, which is invoiced in one sum at the end. In other words, the statement on page 4 can be interpreted to cover the "one transaction" feature. That is, however, not enough. A basis must be direct and unambiguous. Thus, the question remains whether this statement is open to any other reasonable meaning." 

T 1983/14 - [C] - link

Reasons for the Decision

1. The invention

1.1 The invention concerns an electronic point of sale (EPOS) apparatus capable of processing the purchase of mobile telephone credit ("top-up") and the purchase of other goods and services. The apparatus issues the "top-up" as a code printed on the customer's receipt ("top-up voucher" or "top-up code"), and invoices the purchase of the "top-up" and other products as one transaction.

2. Non-attendance at the oral proceedings

2.1 Despite having been duly summoned, respondent 1 did not appear at the oral proceedings before the Board. The Board continued the proceedings, in accordance with Rule 115(2) EPC and Article 15(3) RPBA.

3. Priority

3.1 The only contested issue is the validity of the priority, and, more precisely, whether the feature of claim 1 that the purchase of mobile top-up and other products are invoiced as "one transaction" is disclosed in the priority document.

At oral proceedings, both parties agreed that "one transaction" in claim 1 should be understood as a single payment transaction between a customer and a shop attendant. The appellant referred to Figure 12 of the patent as published, which shows a receipt for the purchase of multiple items, including mobile top-up ("VODAFONE 20 EURS"), paid for in a single transaction of ¤27.17. The Board sees no reason to depart from this interpretation, since it is reasonable and within the scope of the claim.

3.3 Respondent 2 pointed out that the priority document did not explicitly mention that top-up of the mobile phone was invoiced in a single transaction with other products. Furthermore, the examples in figures 6 to 12, on which the appellant relied to explain the invention, were not present in the priority document. The Board agrees. However, explicit disclosure is not a requirement for establishing a right of priority in accordance with Article 87(1) EPC 1973. The test is whether the skilled person can derive the claimed subject-matter, directly and unambiguously, using common general knowledge, from the priority application as a whole (G 2/98, Headnote; OJ EPO 2001, 413).

3.4 The appellant indicated several passages in the priority document which, in its opinion, provided a basis for the "one transaction" feature in claim 1. Starting with the background of the invention on pages 1 and 2, the appellant argued that the whole point of the invention in the priority document was to avoid that products had to be invoiced separately, as multiple transactions.

The Board is not persuaded. The Board understands the priority document, in this introductory section, as proposing that the acts of topping-up and of payment for the topping up should not require two separate machines, but should rather both make use of only one physical EPOS apparatus, so that the attendant does not have to move between different apparatuses (page 1, lines 13 to 25; page 2, lines 27 and 28).

3.6 In light of this aim, the passages on page 3, lines 3 and 4, and lines 15 and 16, could well be read as meaning that different products are invoiced on the same physical apparatus. The Board sees no implication as to the number of payment transactions.

3.7 The Board considers the most promising basis for "one transaction" to be the statement on page 4, lines 12 to 13 of the priority document:

"[a]lternatively, the top-up software control module has means for printing the top-up code onto a customers receipt and adding the value of the top-up to the total receipt".

Here, "adding [...] to the total receipt" could, indeed, refer to a running total, which is invoiced in one sum at the end. In other words, the statement on page 4 can be interpreted to cover the "one transaction" feature. That is, however, not enough. A basis must be direct and unambiguous. Thus, the question remains whether this statement is open to any other reasonable meaning.

3.8 In the Board's view, there is an ambiguity to be resolved. "[T]otal receipt" can be read as referring to the complete physical document provided to the customer, comprising the top-up code and the receipt of payment for the top-up. In other words, both the top-up code and the price paid for the top up are to be printed on the receipt. That is, indeed, an interpretation that accords with the statements on page 1 of the priority document (see point 3.5, above). Thus, in the Board's opinion, there is no implication that the receipt is for other products than mobile top-up. Consequently, there is no direct and unambiguous implication that the purchase of other products is included in the same transaction.

3.9 For these reasons, the Board comes to the conclusion that the strict test of direct and unambiguous derivability, set out in G 2/98, is not satisfied. The subject-matter of claim 1 of the patent as granted is, therefore, not entitled to priority from [Irish patent application] IEA S2004/0045.

4. Novelty

4.1 Since the invention as defined in claim 1 of the patent as granted does not enjoy a right of priority, it is not novel in view of the admitted prior use (Article 54(1) and (2) EPC 1973).

5. Auxiliary requests 1 to 4

5.1 At oral proceedings, it was common ground that "a [...] transaction" in claim 1 according to the first auxiliary request implied that there was only one transaction. Thus, the first auxiliary request does not remedy the problem that led to the loss of priority in the main request.

5.2 The same holds for the second, third and fourth auxiliary requests. They all comprise the feature "one transaction" in claim 1.

5.3 The Board agrees with Respondent 2, that the problem with "one transaction" could not have been overcome by amendment. This is because Article 123(3) EPC prevents the removal, after grant, of a problematic, limiting feature. The problem described in G 1/93 was a violation of Article 123(2) EPC. In the present case, it is lack of novelty due to loss of priority.

Order

For these reasons it is decided that:

The appeal is dismissed.

T 0565/11 - Not saved by the drawings

Key points

• An inconsistency in the claim (and description) can not be taken away by including a reference to a particular drawing.
• " Moreover the reference to the drawing is not allowable because it is not absolutely essential. The intention of the reference is not to define a shape (as in T986/97) but rather to define parameters which could have been defined clearly with words when drafting the patent application."

Reasons for the Decision

1. Main request

1.1 Claim 1 as granted was amended during opposition proceedings to arrive at claim 1 of the present main request. The amendments that are relevant for this decision are:

"the configuration parameters including number of coils, leads (L1,L2,...) and coil radii (R1,R2,...) provided along a radial direction of each coil and set along the leads (L1,L2,...) of the target helical spring,"

"coil diameters (D1,D2,...) which are provided in a radial direction of each coil of the target helical spring and

set along the pitches (P1,P2,...) for the number of coils,"

The underlined wording was not present in the granted claims.
These amendments may therefore be examined for clarity according to the order of G3/14.

T 0057/14 - Ten year old sample product

Key points

• " It is true that the intervener relied on one single product sample in the present appeal proceedings. However, A17/2, A17/3 and A17/5 show that thousands of SUPER CANDY products had been sold before the priority date of the patent. Furthermore, it is not surprising that, after a long time - the intervener had filed its intervention in 2014, i.e. more than a decade after the SUPER CANDY product had been sold - the intervener had only one product sample at its disposal."
• The intervener - intervening in appeal in 2014 - succeeds in proving "up to the hilt" public prior use in 1998 of a kind of straw with flavour releasing pellets inside. 

T 0057/14 - link

Reasons for the Decision

1. Admissibility of the intervention

As confirmed by the proprietor, it had filed an application for preliminary injunction in Hungary against the intervener as a complaint against patent infringement in respect of the Hungarian part of the opposed patent. A copy of this application was submitted by the intervener as A2. This document carries a stamp with the date of 26 March 2014.

An application for preliminary injunction triggers the three-month time limit under Rule 89 EPC for filing an intervention. This time limit thus started on 26 March 2014. The notice of intervention was filed in two parts on 5 and 30 May 2014 and the opposition fee was paid on 23 May 2014, all being within the required three-month time limit. This was not contested by the proprietor.

The board therefore decided that the intervention was admissible.

Main request (claims as granted) - Novelty

2. Novelty was contested in view of the public prior use of the product "SUPER CANDY DRAGEES DRINK" (hereinafter "SUPER CANDY product"). According to the intervener, the company Feldföldi Potpourri Kft. had sold this product to various clients and had exhibited it at various trade fairs before the priority date of the patent. The intervener and the opponents considered this product to be novelty-destroying with respect to the subject-matter of claims 1 and 2.

The SUPER CANDY product originates from the intervener, and thus all available proof is in its sphere of influence. The appropriate standard for the intervener to prove its case is therefore "up to the hilt" (T 472/92, OJ EPO 1998, 161 (point 3.1), which is equivalent to the "beyond reasonable doubt" standard of proof (T 97/94, OJ EPO 1998, 467, point 5.1; T 55/01, point 4.1; and T 2/09, point 3.2).

3. Identity between the SUPER CANDY product and the receptacle of claim 1

3.1 A photograph of the package of the SUPER CANDY product is shown in A9 and A21. A9 shows the front and one side of the package. The front has on its top the indication "SUPER CANDY DRAGEES DRINK" and below it, the head of a cow drinking from a straw filled with pink pellets. On the lower part of the package, there is a second image showing part of a straw filled with pink pellets and having a crimped end. The side of the package contains on its top the indication "SUPER CANDY DRAGEES DRINK straw with candy pearls". Below this indication, there is a list of the ingredients of the pellets, an instruction to keep the product in a cool and dry place, the company name "Felföldi Potpourri Kft." together with its address and, near the bottom, the expiry date "Best before date: 14.01.98".

A21 shows the other two sides of the package not visible in A9. One side is identical to the front visible in A9. On the top of the other side, the instruction "Stick a straw into a glass of milk and sip the fantastic flavour drink!" is written. Underneath is the indication "rechargeable in subjunctive bag" and with it three images showing the process of recharging. Towards the bottom, a bar code is visible.

3.2 In A17/3, Jutta Harmannstein, who assisted in the foundation of a company that purchased the SUPER CANDY product, states that this product was a drinking straw containing granules suitable for drinking milk.

3.3 In A11, László Somogyi, associate professor at Corvinus University of Budapest, gives expertise on the characteristics of the SUPER CANDY product.

László Somogyi declares that the package of the SUPER CANDY product - photograph 1 of A11 shows a package that is identical to that of A9 - contained one plastic bag filled with nonpareil dragees and one straw filled with nonpareil dragees (item "Sample of the product" on the second page of A11). The straw had a diameter of 6 mm, and was filled with spherical dragees having a diameter of between 2 and 3 mm. The filled straw is shown in photograph 3 of A11. László Somogyi concludes that the diameters of the dragees were one third to half of the straw diameter.

Also, A22 shows a package, identical to that of A9, a bag and a straw, both filled with spherical pellets looking identical to those in A11.

3.4 The filled straw of the SUPER CANDY product corresponds to the feature of claim 1 of a receptacle including an elongate tubular body, and a plurality of pellets of a predetermined size and shape containing a predetermined measure of active ingredient, the receptacle being sized to allow a carrier liquid to be drawn therethrough, such that passage of the carrier liquid through the receptacle causes the pellets to progressively dissolve, thereby releasing the active ingredient into the beverage upon consumption.

3.5 As visible on photograph 3 of A11, the straw filled with the dragees has crimped ends. Such a crimped end is also visible on the package shown in A9 and A21. The crimped ends retain the pellets substantially within the straw. These crimped ends therefore correspond to the filtration means as required by claim 1. This is in line with the decision of the Landgericht Düsseldorf (A13, first two pages of the Reasons).

3.6 It is therefore beyond reasonable doubt that the SUPER CANDY product exhibited all features of claim 1.

3.7 The proprietor contested this. For the following reasons, the proprietor's arguments (which are summarised below) are, however, not convincing:

3.7.1 It was not clear whether it was the particles in the bag or those in the straw that were tested in A11; they were different from another, at least in terms of the diameter (argument presented in writing only).

It is true that László Somogyi stated in A11 that the package contained one plastic bag and one straw, each filled with pellets. However, he arrived at the finding that the diameter of the pellets is one third to half of the straw diameter (see 3.3 above) on the basis of the size of the pellets inside the straw (seventh line from the bottom of the second page of A11). There is thus no doubt that the pellets in the straw rather than those in the bag were taken into account for determining the diameter.

3.7.2 The straw in the package shown in A9 and A21 was empty and one had to first fill pellets from a bag into the straw before using it.

The board does not agree with this argument. The package in A9 and A21 does not show an empty straw but one filled with pellets. Furthermore, the instruction shown on the package in A21 to fill the straw with pellets actually concerns the recharging of the straw, which implies that the straw in the package was initially already filled with the pellets. This is corroborated by László Somogyi and Jutta Harmannstein, who state that the straw contained pellets.

3.7.3 Claim 1 required the filtration means to be such that the pellets remained within the straw while they dissolved during the drinking of the milk. Contrary thereto, the crimped ends of the SUPER CANDY straw were completely closed and had to be opened for drinking. Thus, while sucking the milk through the opened straw, all pellets were immediately sucked out of the straw. The crimped ends did therefore not constitute filtration means.

Firstly, the proprietor has not provided any evidence for its assertion that the crimped ends of the SUPER CANDY straw are completely closed.

Secondly, in the instruction to recharge the straw with pellets (A21), red arrows indicate that one of the crimped ends needs to be pressed together - thereby pushing the crimped end open - to allow pellets to be filled in the straw.

Unlike for the process of refilling the straw, no such instruction is present on the package for the process of drinking. On the contrary, the image of the head of a cow drinking from the straw rather indicates that no additional measure, and in particular no pushing open of the crimped ends, is necessary for drinking.

The proprietor's argument that the crimped ends have to be pushed open for drinking is thus not valid.

As regards the proprietor's other allegation that the crimped ends would open due to sucking force, there is simply no evidence for this allegation.

The board's finding (point 3.5 above) that the crimped ends of the SUPER CANDY straw are filtration means therefore still holds true. It is in this respect noted that whether, possibly, a crimped end is a less efficient filtration means than some other type of filter is not relevant, since claim 1 is not restricted in this respect.

3.8 The board's finding thus remains valid, i.e. that it is beyond reasonable doubt that the SUPER CANDY product exhibits all features of claim 1.

4. Identity between the SUPER CANDY product and the receptacle of claim 2

4.1 Claim 2 differs from claim 1 in that, instead of their diameter, the pellets are defined to be formed predominantly as nonpareil pellets, each having a plurality of generally concentric layers. It was a matter of dispute whether the pellets of the SUPER CANDY product fulfill this requirement.

4.2 In declaration A11, László Somogyi states that the straw contained in the box was filled with nonpareil dragees (item "Sample of the product" on the second page of A11). This is corroborated by the further statement just before point 2 on the third page of A11:

"I cut the dragees and found that a centre is clearly observable from the outer layer. Investigating under microscope the crystallized sugar layers were recognisable".

This statement is further corroborated by the three photographs 4 to 6 of one of the pellets (last three pages of A11). In these photographs, a pellet with a dark pink core and a lighter pink surrounding is visible. Since the thickness of the surrounding is large compared with the dimension of the core, it is plausible that the surrounding consists of more than one layer.

4.3 The statements and photographs in A11 are further supported by the terms "DRAGEES" (front in A9 and A21) and "pearls" (side in A9) on the package of the SUPER CANDY product, which indicate that the pellets are of the nonpareil type.

4.4 Lastly, this is corroborated by the way the pellets are produced, as evidenced by A15:

A15 is a product sheet referring to the SUPER CANDY mixed fruit flavoured dragée (see the item "3) Name of Food" on the first page of the English translation of A15). The intervener declared that this sheet was submitted to the Directorate of Food Chain Safety and Animal Health Government Office to get approval as regards certain food and health requirements. This is confirmed by the seal of the directorate concerned and the approval A16 given by the Animal Health and Food Control Station for the pellets of A15.

According to A15, the SUPER CANDY dragée is produced as follows: Sugar is put into the dragée drum and dragée syrup is poured onto it. The corpora that have got wet are dried by sprinkling powdered sugar on them. This operation is repeated until the adequate size is achieved (point 8 on the second page of the English translation of A15). As not disputed by the proprietor, such a process results in a nonpareil pellet with multiple generally concentric sugar layers.

It is thus beyond reasonable doubt that the SUPER CANDY product exhibited all the features of claim 2.

4.5 The proprietor has contested this. The proprietor's arguments (which are summarised below) are, however, not convincing for the following reasons:

4.5.1 A15 and A16 were only about the pellets and not the straw, and thus did not relate to the SUPER CANDY product (i.e. the straw including the pellets).

The board acknowledges that A15 and A16 indeed deal only with pellets. This is, however, not surprising, since approval as regards food and health requirements is needed for the pellets only, because these rather than the straw are being consumed upon drinking. It is in fact against life experience that a product that has been approved by the food authorities and has a certain name is not used in straws with the same name.

4.5.2 In declarations A12, A17/1, A17/3 and A17/5, the SUPER CANDY product was said to be composed of "granules". Granules in the proprietor's view were different from nonpareil pellets.

However, these declarations are not about the particle morphology of the SUPER CANDY product but its public availability. Therefore, the term "granules" in these declarations can be assumed to have been used as an umbrella term for whatever type of particles, without imposing any restriction on particle morphology. The use of the term "granules" in these declarations can therefore not invalidate the board's finding that the pellets in the SUPER CANDY product are of the nonpareil type.

4.5.3 Contrary to the photographs of the pellets of the SUPER CANDY product in A11, the photograph of a nonpareil pellet in O63 showed multiple coating layers. This implied that the pellets of the SUPER CANDY product did not contain such multiple coating layers.

This argument is not convincing. As pointed out by opponent 1 during the oral proceedings, and as not disputed by the proprietor, O63 shows a pellet in which the various coating layers are formed from materials with two different colours (dark purple and very light purple). It is due to these different colours, rather than the fact that the pellet is a nonpareil pellet, that multiple individual layers are visible in O63.

4.5.4 The relevance of A11 was doubtful, since the tests were done on a product that was 16 years old and thus the properties of the product had possibly changed (argument presented in writing only).

However, the product shown in the photographs annexed to declaration A11 looks identical to that on the package of the "SUPER CANDY" product (A9 and A21). Therefore, in the absence of any proof to the contrary, it must be assumed that the features of the product tested in A11 are the same as those of the "SUPER CANDY" product sold before the priority date of the patent.

4.5.5 The pellets in "Master Cow" had, according to József Felföldi's declaration A10, been produced by the same technology as those in the SUPER CANDY product, and thus were nonpareil pellets. This was in contradiction to the finding of Graham Nigel Luke in O65 that the "Master Cow" product was composed of granules rather than nonpareil pellets. Also, the decision of the Landgericht Düsseldorf A13 acknowledged that the pellets of the "Master Cow" product were flakes rather than nonpareil pellets.

The board does not find the proprietor's argument convincing. The present public prior use is concerned with the SUPER CANDY product rather than the "Master Cow" product. The finding that the "Master Cow" product was composed of granules rather than nonpareil pellets can, if anything, only shed doubt on the credibility of József Felföldi's declaration A10. This declaration is, however, not relevant, since the board's finding is not based thereon. Furthermore, contrary to the proprietor's assertion, the Landgericht Düsseldorf did not acknowledge that the pellets of the "Master Cow" product were not of the nonpareil type. In fact, it explicitly stated that there was no need to decide ("kann dahinstehen") on whether the pellets were pearls or flakes (second paragraph on page 11 of A13).

4.5.6 According to decision T 2010/08, a declaration is not credible if no witness is offered to confirm it. Since, in the present case, none of the declarants of the intervener was present at the oral proceedings or offered as a witness, the declarations of the intervener had to be discarded as not credible.

The board is, however, not aware of any passage in T 2010/08 that supports the proprietor's argument. What this decision says is that, in the event of a declaration not being sufficient to prove that an allegedly prior-used product has all the claimed features, this cannot be supplemented by hearing the declarant as a witness (point 2.8 of the decision).

4.6 The board's finding thus remains valid, i.e. that it is beyond reasonable doubt that the SUPER CANDY product exhibited all features of claim 2.

5. Public availability

5.1 As set out above, the package in A9 gives as the expiry date "Best before date: 14.01.98". The product was thus produced and foreseen to be consumed before 14 January 1998, which is prior to the priority date of the patent (31 May 2002).

In A17/2, Mr P. Veen, General manager of the former company Biscomar N.V., declared that, in January 1999, he ordered and received 2700 pieces of the product "SUPER CANDY" from Felföldi Potpourri Ltd, and he confirmed that the package of this product shows a straw and a cow head, as does the package of A9 and A21. This is corroborated by the attached invoice proving that 2700 pieces of "SUPER CANDY" had been ordered by the company N.V. Biscomar on 25 January 1999 and shipped to it on 8 February 1999.

In A17/3, Jutta Harmannstein, who assisted in the foundation of the company AGILORA Gesund & Schön, confirmed that this company purchased the product "Super Candy" from Felföldi Potpourri Industrial and Trading Ltd. on 14 September 1998. This is corroborated by the attached invoice proving that 9720 pieces of "SUPER CANDY" had been ordered by Agilora Gesund + Schön on 14 September 1998 and shipped to it on 6 October 1998.

In A17/5, Peresztegi Gyuláné, who was a commercial team leader of the company MOL Rt between 1 July 1995 and 30 November 2000, states that this company regularly purchased a product named "Super Candy Dragees" from Felföldi Potpourri Kft during this period, and that the product was sold in a box which showed the head of a cow and a straw hanging from its mouth, as does the package of A9 and A21.

5.2 In view of the above, it is beyond reasonable doubt that the SUPER CANDY product was produced and sold to at least three customers before the priority date of the patent.

5.3 The proprietor has contested public availability before the priority date. For the following reasons, the proprietor's arguments (which are summarised below) are not convincing:

5.3.1 All the photos of the SUPER CANDY product package were identical. There seemed thus to have existed only one single such product package. It was therefore doubtful whether the SUPER CANDY product had ever been sold.

It is true that the intervener relied on one single product sample in the present appeal proceedings. However, A17/2, A17/3 and A17/5 show that thousands of SUPER CANDY products had been sold before the priority date of the patent. Furthermore, it is not surprising that, after a long time - the intervener had filed its intervention in 2014, i.e. more than a decade after the SUPER CANDY product had been sold - the intervener had only one product sample at its disposal.

5.3.2 Opponent 2, a major food company, had never indicated that the SUPER CANDY product existed. This shed doubt on whether the product had been on the market at all.

However, the reasons why an opponent is silent about the existence of a certain product may be manifold. The opponent's silence can in particular not shed doubt on what is proven by the declarations and invoices A17/2, A17/3 and A17/5, namely that thousands of SUPER CANDY products had been sold to various customers.

5.3.3 The dimensions of the straw given in A17/1 for the SUPER CANDY product and the material thereof (polyethylene) were different from all other straws known to the proprietor.

The board acknowledges that it may well be that the straws used in the SUPER CANDY product were different from those known to the proprietor. The board fails to see, however, how this can invalidate its finding that the product was sold before the priority date of the patent.

5.3.4 According to A17/6, the package shown in A9 had been designed in September 1998. This was after and thus in contradiction to the expiry date indicated on the package, i.e. 14 January 1998.

The board acknowledges that the date of September 1998 given in A17/6 for a "packet and leaflet" (penultimate sentence of the declaration) is indeed after the expiry date on the package. However, the intervener pointed out that the packet was different from the package, in that the packet (and leaflet) referred to in A17/6 were intended for trade fairs rather than for sale.

The board furthermore notes that A9, A11 and A21 show a photograph of the package with the expiry date of 14 January 1998. Hence this package must have physically existed on, and thus have been designed before, that date. This is in fact corroborated by A17/6 itself, which explicitly mentions November 1997, which is before the expiry date on the package as the date of making "the design of the packaging (i.e. not packet) of "Super Candy" (emphasis and insertion in brackets added by the board).

5.3.5 The date of manufacture in A10 did not say anything about whether the SUPER CANDY product was publicly available. Moreover, since the product shown in A17/6 was a computer-generated image rather than a photograph, A17/6 did not constitute proof that the SUPER CANDY product existed. Furthermore, the intervener had not sufficiently proven that the SUPER CANDY product had been exhibited at trade fairs before the priority date of the patent.

However, the board's finding of public availability before the priority date of the patent does not rely on A10, A17/6 or any exhibition of the SUPER CANDY product during trade fairs. The proprietor's argument can thus not change this finding.

5.4 The board's finding thus remains valid, i.e. that it is beyond reasonable doubt that the SUPER CANDY product had been produced and sold to at least three customers before the priority date of the patent. The SUPER CANDY product had therefore been publicly available before the priority date of the patent.

6. The subject-matter of claims 1 and 2 therefore lacks novelty over the public prior use. The main request is thus not allowable.

Auxiliary requests - Novelty

7. Claim 2 of auxiliary requests 1 to 3 and claim 1 of auxiliary request 4 are identical to claim 2 of the main request. Therefore, for the same reasons as given above with regard to claim 2 of the main request, the subject-matter of claim 2 of auxiliary requests 1 to 3 and claim 1 of auxiliary request 4 lacks novelty over the public prior use.

Claim 1 of auxiliary request 5 differs from claim 1 of the main request only in that the pellets are defined to be generally spherical. As visible on the package of the SUPER CANDY product in A9 and A21 and in photograph 3 of A11, and as not disputed by the proprietor, the pellets of the SUPER CANDY product are generally spherical. Therefore, for the same reasons as given above with regard to claim 1 of the main request, the subject-matter of claim 1 of auxiliary request 5 lacks novelty over the public prior use.

Auxiliary requests 1 to 5 are thus not allowable.

8. In view of the fact that none of the proprietor's requests was allowable, the board did not decide on the opponents' and the intervener's further objections as regards lack of novelty and lack of inventive step over the printed prior art and the grounds of Article 100(b) and (c) EPC.

No decision was furthermore taken on the proprietor's request that D15, O23, O24 and O25 not be admitted into the proceedings - these documents were not relevant to the present decision - and on opponent 1's request that certain questions related to the ground of Article 100(b) EPC be referred to the Enlarged Board of Appeal.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.