T 1130/11 - "Interner bericht" is public

Key points

• The present case concerns an examination appeal. The priority date is in 2004. D3 is " D3 Heiss, H-U.: "Processor Management in Two-Dimensional Grid-Architectures", Interner Bericht Nr. 20/92, University of Karlsruhe, 1992, pages 1-52; XP002416087."
• " Before the oral proceedings, the board performed a limited investigation in the Internet about D3 and presented its results to the appellant during the oral proceedings. The board found one United States patent (US 8,190,714 B2, page 3, right column) and three scientific papers citing D3. Furthermore, D3 is listed in the online catalogue of the Deutsche National­bibliothek and is available in its reading rooms in Frankfurt and Leipzig with a number (Signatur) from 1993 (see http://d-nb.info/931177162), i.e. well before the priority date of the application (2004). Thus, the board maintains its opinion that in the field of universities "Interner Bericht" does not mean confiden­tial, but something like "technical report", and that D3 was publicly available prior art at the priority date.

T 1130/11 - link

Reasons for the Decision

1. Overview of the invention

The application relates to scheduling a job request in a high-performance computing (HPC) system which consists of a cluster of computing nodes (e.g. blade servers or PCs; see original description page 7, para­graph 2). []

2. Overview of the decision

2.1 The claims of all requests are clear (Article 84 EPC 1973).

2.2 The request for remittal to the first instance according to Article 111(2) EPC 1973 is refused.

2.3 Claim 1 of all requests lacks an inventive step (Article 56 EPC 1973).

3. Clarity

3.1 The board does not agree with the appealed decision (2.1, 2.2) that the expression "generate compact combinations of nodes" as used in claim 1 of all requests is unclear. This results from the fact that it is immaterial how "compact" is defined and which "compact" schedules (meaning combinations of nodes to be allocated to the request) are generated, since one of the minimal schedules with respect to the hop counts is selected and outputted. This can be seen from the following.

3.2 The essence of claim 1 of all requests can be summarised as follows:

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3.6 Therefore, claim 1 of all requests is clear.

4. Remittal

According to Article 111(1) EPC 1973, the board has to examine the allowability of the appeal and then has dis­cretion either to exercise any power within the com­petence of the department which was responsible for the decision appealed or to remit the case to that depart­ment for further prosecution. The board agrees with the appellant that procedures before the EPO are designed so that issues are normally decided by two instances. As follows from Article 111(1) EPC 1973, however, this does not give the parties an absolute right to two instances. In the case at hand, the appellant requested a remittal of the case to the first instance according to Article 111(2) EPC 1973 for three reasons.

4.1 The first reason is that the ground for refusal (lack of clarity, Article 84 EPC) is considered by the board to be overcome. The appellant would prefer to have the matter of inventive step considered in substance by both instances (letter dated 24 March 2016, page 1, last paragraph).

4.1.1 However, the objections concerning inventive step over D1 are not new. They were already raised in the first communication of the examining division dated 26 July 2006, and maintained in the second communication dated 2 February 2007, the summons to oral proceedings before the examining division and the decision (sections 5 and 6). Thus, there was a detailed consideration of inventive step by the first instance. The board considers that no purpose would be served by remitting a case for further prosecution based on a re­quest that was held unallowable by the examining division.

4.2 The second reason according to the appellant is that further investigation about D3 had to be done by the examining division. D3 is marked as "Interner Bericht Nr. 20/92" (i.e. "internal report") at the bottom of page 1. Therefore, the appellant contests that D3 was publicly available and argues that D3 does not belong to the prior art.

4.2.1 Before the oral proceedings, the board performed a limited investigation in the Internet about D3 and presented its results to the appellant during the oral proceedings. The board found one United States patent (US 8,190,714 B2, page 3, right column) and three scientific papers citing D3. Furthermore, D3 is listed in the online catalogue of the Deutsche National­bibliothek and is available in its reading rooms in Frankfurt and Leipzig with a number (Signatur) from 1993 (see http://d-nb.info/931177162), i.e. well before the priority date of the application (2004). Thus, the board maintains its opinion that in the field of universities "Interner Bericht" does not mean confiden­tial, but something like "technical report", and that D3 was publicly available prior art at the priority date.

4.3 The third reason according to the appellant is that a significant change in the case had emerged. Now, D3 is considered as closest prior art, instead of D1 as in the obiter dictum of the decision.

4.3.1 This turned out during oral proceedings to be a misunderstanding. The board never stated that it took D3 as closest prior art, but wrote for example in the summons (6.1) that it considered the reasoning of the decision sound and convincing and that it wanted to add some reasons which confirmed the decision. Thus, the board considers D1 to be a suitable starting point for assessing inventive step.

4.4 Therefore, the board exercises its discretion and decides not to remit the case to the first instance.

5. Inventiveness

5.1 The decision gives a complete inventive step argumen­tation in its obiter dicta (5.-7.2). The board consi­ders it to be sound and convincing. Furthermore, the board adds the following reasons confirming the decision.

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5.11 Therefore, claim 1 of all requests is not inventive.

Order

For these reasons it is decided that:

The appeal is dismissed.