T 2143/21 - Snip and Sketch with the Board

Key points

• The appellant proprietor submits that the structure disclosed by Figure 2 of D1 does not satisfy the claimed proportions of 0.8D <= D1 <= 0.9D and L1 >= 0.06D. 
• The Board: "It is readily apparent when considering the figures of D1 in the context of the whole disclosure that the figures 1-3 of D1 are not mere schematic drawings (defined as "an illustrative figure which gives an outline or general scheme of an object" (OED))."
• " The Board is also not convinced by the appellant proprietor's arguments that the figures' measurements of D1 contradict the teaching of its description. Figure 2 shows a circle with a substantially constant radius and thus represents a "generally spherical-shaped exterior surface 132 having a single, constant radius", as is described in para [0022] of D1. The manual three point method using a compass to find the centre of circle used by the proprietor is not accurate enough to prove that this is so [i.e. that there is a contradiction]."
• " Using the Windows 10 Snip & Sketch tool, for example, a more accurate determination of the cross-sectional shape of exterior surface can be made and it is found to be circular as expected for a "generally spherical" surface as stated in D1, see screen-shot below. The figure in the screen-shot shows a circle fitting practically perfectly the cross-section of the spherical surface in Fig. 2. The Board adds that the Snip & Sketch tool is a standard, well known feature of the Windows operating system, and has been so at least from Windows 10 onwards.
• Snipping Tool seems to be the current name in Windows 11.
• " Insofar as the appellant proprietor is unfamiliar with the tool, instructions as to its use are freely available on the Internet. Insofar as the appellant proprietor's query at the oral proceedings before the board as to its functioning is meant to question or call into doubt its accuracy, such doubts, leaving aside the fact that they are late, constitute nothing more than unsubstantiated allegation and must fail.

  FORMULA/TABLE/GRAPHIC

  Using the same Snip&Sketch tool the angle theta of Figure 2 is found to be 83°. This again does not contradict para [0025] of D1 where it states "[F]or example... can be about 80 degrees" (emphasis added)."

• "the Board holds that, contrary to the conclusions of the opposition division, the subject-matter of upheld claim 1 does not involve an inventive step, Art 56 EPC."

EPO 

The link to the decision is provided after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t212143eu1