T 2136/16 - No adjournment of oral proceedings

Key points

• This decision was given publication code [C] with reference to paragraph 8.
• The Board does not refer a question proposed by the proprietor to the Enlarged Board of Appeal because the question is not relevant for deciding the case. In particular, "the board did not base its findings on the term "alarm" on a new connotation or interpretation presented for the first time in the oral proceedings. " 
• The Board denied the proprietor's request for adjournment of the oral proceedings " in order to gather evidence as to whether the alleged connotation of the translated term "alarm" in [the translated prior art document] was consistent with the original term in D11."The board cannot accede to this request. It is based on the allegation that the word "alarm" disclosed in [the translation] was given a new connotation or interpretation, i.e. that the alarm is issued to the user, for the first time during the oral proceedings. This allegation is incorrect, as is evidenced by the fact that the decision under appeal is clearly based on the same interpretation of "alarm" as the present decision" . 
• The appeal was dismissed, the patent remained revoked.

EPO T 2136/16 -  link

6.3 Hence, the subject-matter of claim 1 lacks inventive step in view of D11 and the common general knowledge.

First auxiliary request - adjournment of the proceedings

7. As a first auxiliary request, the proprietor requested an adjournment of the oral proceedings in order to gather evidence as to whether the alleged connotation of the translated term "alarm" in paragraphs 24 and 25 of D10 was consistent with the original term in D11.

The appellant contested that the term "alarm" had an emotional connotation implying that it was directed to a human user. This alleged connotation was the basis of an argument raised by the respondents for the first time during oral proceedings before the board.

7.1 The board cannot accede to this request. It is based on the allegation that the word "alarm" disclosed in paragraphs [0024] and [0025] of D10 was given a new connotation or interpretation, i.e. that the alarm is issued to the user, for the first time during the oral proceedings. This allegation is incorrect, as is evidenced by the fact that the decision under appeal is clearly based on the same interpretation of "alarm" as the present decision, i.e. that the alarm of D11 "addresses the user of the device" (see Reasons, point 14.9). No other connotation was and is considered to be implied in the word "alarm". It follows from this and the findings on inventive step above that it was not during the oral proceedings that the word "alarm" was first given a new connotation or interpretation, i.e. that it implied an emotional communication directed to a human user.

7.2 Hence, the appellant's request for an adjournment of the oral proceedings cannot be allowed.

8. The appellant submitted the following question for referral to to the Enlarged Board of Appeal:

"In an argument raised for the first time during oral proceedings before a Board of Appeal, is it allowable to form an opinion of the presence of direct and unambiguous disclosure with regard to a translated term in a foreign language prior art document based on an alleged connotation of that translated term without first gathering evidence on the connotation of that term in the native language? If this is generally allowable is it also allowable where there is disclosure elsewhere in that translated document that is inconsistent with that connotation?"

8.1 According to Article 112(1) EPC 1973, a question may be referred to the Enlarged Board of Appeal in order to ensure uniform application of the law, or if a point of law of fundamental importance arises. A board of appeal may, during proceedings on a case and either of its own motion or following a request from a party to the appeal, refer any question to the Enlarged Board of Appeal if it considers that a decision is required for these purposes.

8.2 As set out under point 7.1 above the board did not base its findings on the term "alarm" on a new connotation or interpretation presented for the first time in the oral proceedings. Therefore, the board considers that the question according to the appellant's request does not contain a point of law which is relevant for the present case.

8.3 However, for a question to be referred to the Enlarged Board of Appeal, it must be relevant for deciding the case in question (G 1/14, OJ EPO 2016, A95 and G 2/04, OJ EPO 2005, 549). Since this not the case here, the appellant's request for a referral to the Enlarged Board of Appeal has to be refused for this reason alone.

Conclusion

9. Since none of the appellant's requests is allowable the appeal must be dismissed.