T 2340/12 - Experimental results and "space energy"

Key point

• In this examination appeal, the title of the application is "A space energy implosion unit and energy amplification unit using the same". 
• For this case, I will just refer to the EPO headnote shown below.
• As a bit of context, the Examining Division said in the Communication of 06.11.2010, point 2.3, that the applicant tries to prove the existence of a "torsion field"  and its medical properties with a single scientific paper as evidence, "torsion field" being essentially synonymous with "space energy" in the application at issue. D3 cited by the ED was an article titled "Pseudoscience. How does it threaten science and the public?".

EPO headnote
The filing of experimental results is not to be seen as an obligation resulting from the EPC imposed on the applicant but, in contrast, as a right, recognised by the practice and the case law of the boards of appeal, providing the applicant with the opportunity to convince the examining division or board of appeal that it erred in its initial findings.

Claim 1 at issue

"1. A torsion field implosion unit comprising:

• a planar structure (1) having a regular pentagonal shape;
• a cubic structure (2) which is installed to be separated from an upper portion of the planar structure (1) and has a regular pentagonal pyramid shape; and
• a separation structure (3) which separates the planar structure (1) and the cubic structure (2) from each other and has a smaller area than areas of the planar structure (1) and the cubic structure (2)."

EPO T 2340/12 - link

3. Main Request - Sufficiency of disclosure

3.1 It is, firstly, observed that the board does not understand how the torsion field or space energy are to be measured. In particular, it is not straightforward for the skilled person to identify which devices or systems could possibly be used for such measurements. Similarly, in the description (cf. paragraph [97]) reference is made to the frequency of the radiated space energy. In the absence of direct measurements of the torsion field or space energy, the board does not understand how the frequency of the radiated space energy could actually be measured.

[...] 

3.4 The appellant contested the findings of the examining division regarding the absence of proof of the effects achieved by the claimed devices. It was emphasised, in this respect, that the EPC does not contain any requirements for such experimental evidence to be provided. The appellant further questioned the competence of the examining division to require such evidence.

3.5 Article 83 EPC 1973 requires that the invention be disclosed in a manner sufficiently clear and complete for it to be carried out by the skilled person. In the case of inventions in fields of technology without any accepted theoretical or practical basis, the case law of the boards of appeal has established that the application should contain all the details of the invention required for the effect to be achieved (cf. T 541/96, point 6.2). This is the direct consequence of the fact that the skilled person will be unable to rely on common and accepted general knowledge when dealing with inventions in such fields.

Concerning the burden of the proof, the following should be noted. It is not contested that it is for the organ raising the objection of lack of sufficiency to justify its view. It is, therefore, in ex-parte proceedings, up to the examining division or the board of appeal to substantiate the objection raised. A different approach would be tantamount to incorporate further conditions for the grant of a patent for which no legal support can be found in the EPC. Such objection should rely on concrete and verifiable knowledge or facts that question the reality of the effects provided for by the claimed invention. The lack of credibility may result, for example, from a conflict with established laws of physics or merely because the nature or intensity of the effects relied upon may appear rather "surprising" in view of what is generally achieved by the prior art.

It is then for the applicant/appellant to provide the arguments or evidence that convince the examining division or board to change its position. This may be achieved, for example, by way of a plausible theoretical explanation of the phenomena involved, or by providing results from experimentation or simulation. Reference is made, in this respect, to decision T 1842/06 (cf. point 3) of the present Board (in a different composition) where similar issues were discussed.

There is no provision in the EPC according to which the grant of a patent depends on the filing by the applicant of evidence that the claimed invention performs satisfactorily in the form of results of experimentation. It follows that the filing of such results is not to be seen as an obligation imposed on the applicant but, in contrast, as a right, recognised by the practice and the case law of the boards of appeal, providing the applicant with the opportunity to convince the examining division or board of appeal that it erred in its initial findings.