T 2028/11 - Missing evidence

Key points

• The examining division based its decision of lack of inventive step on D1 in combination with the teaching of "Windows XP". As evidence of what was known from Windows XP, the examining division relied on D5 and a number of screen shots handed to the applicant during oral proceedings. The screen shots were said to show [...].
• In the grounds of appeal, the appellant contested the relevance of the screen shots, which had been generated after the priority date. Regrettably, however, the Board cannot assess the relevance of the screen shots because they are not present in the file and the Board has not been able to obtain a copy of them. Since the missing screen shots are an essential part of the reasoning on lack of inventive step, the Board has doubts whether the decision is sufficiently reasoned. Nevertheless, the Board can decide on inventive step based on D1 alone [...]

EPO T 2028/11 - link

Reasons for the Decision

1. Background

1.1 The invention concerns the display of events, such as missed calls, received text messages, or calendar events, on a mobile phone. The events are represented by icons positioned on a timeline. Figures 4A, 4B, 5, 6, and 7A to 7D show examples of timelines. In figure 7A, the timeline has the shape of a snowman.

1.2 Mobile phones have small displays. As a consequence, the timeline might not fit within the display area. The invention mitigates this problem by displaying a single icon for events that occur simultaneously. The user may get summary information about the event by placing the cursor over the icon, and, by clicking on the icon, the user gets more detailed information. In the application, 'clicking' means a selection using the key pad of the mobile phone (see paragraphs [0035] and [0036] of the published application).

2. D5 and the missing screen shots

2.1 The examining division based its decision of lack of inventive step on D1 in combination with the teaching of "Windows XP". As evidence of what was known from Windows XP, the examining division relied on D5 and a number of screen shots handed to the applicant during oral proceedings. The screen shots were said to show the two-step procedure of displaying summary information when the user placed the cursor over the icon and more detailed information when the user clicked on the icon.

In the grounds of appeal, the appellant contested the relevance of the screen shots, which had been generated after the priority date. Regrettably, however, the Board cannot assess the relevance of the screen shots because they are not present in the file and the Board has not been able to obtain a copy of them. Since the missing screen shots are an essential part of the reasoning on lack of inventive step, the Board has doubts whether the decision is sufficiently reasoned. Nevertheless, the Board can decide on inventive step based on D1 alone especially since the issues raised by the Board had already been raised by the examining division in the communication of 15 October 2008.