T 2620/19 - An email as a combination document (ARPES)

Key points

• "Reference is made to the following documents:
• O2D1: User manual for the Scienta Electron Spectrometer SES 200, dated 96-04-15 []
• O2D7: compilation of Email exchanges, labeled individually X1 to X5"
• "In the present case, the e-mails summarised under X4 all refer to the same subject (PO K0000030433) and thus can be considered to represent one single e-mail thread."
• " X1 to X4 together do not belong to one single E-mail thread; however, they all relate to the idea, first formulated apparently by the author of X1 and X3, to put a deflector in an existing Scienta analyser to deflect electrons perpendicular to the slit in order to avoid sample rotation."
• "The Board notes that the persons involved in X1 to X4, except for one person who was an employee of the patent proprietor, have worked for a number of different research institutes (Brookhaven National Laboratory, University of Missouri - Kansas City, Forschungszentrum Jülich) when these e-mails were sent.
• "Further, X1 to X4, in accordance with O2D8, do not comprise any indication that their content was to be treated in a confidential manner, as accepted by the proprietor in its letter of 21 December 2023."
• "the information contained in X1 to X4 was available to a number of people working for different organisations, and without any explicit indication that it should be kept secret.
• "The Board notes that there is also no indication that any special relationship existed between them other than that they were all working in the same research area, which could be interpreted as a kind of implicit confidentiality obligation as set out for a different case in decision T 1081/01"
• The 'which' refers to the special relationship, I think, i.e.: "there is also no indication that any special relationship existed between them (other than that they were all working in the same research area) that could be interpreted as a kind of implicit confidentiality obligation".
• Hence there is no implicit confidentiality.
• "The subject-matter of claim 1 of the main request thus differs from O2D1 by the features relating to the second deflection of the particle beam"
• "This problem is mentioned in both X2 and X3. Both documents propose to use a deflector before the entrance slit of a Scienta ARPES analyser to solve that problem (X2: second paragraph; X3: idea 1 in the attached figure). The skilled person would therefore be prompted by any of these documents to use a deflector instead of moving the sample."
• "It follows from the above that the subject-matter of claim 1 of the main request is not inventive under Article 56 EPC in view of O2D1 combined with any of X2 or X3 and the common general knowledge of the skilled person."

EPO 

The link to the decision can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t192620eu1