T 1493/23 - On the blurry greyscale documents in the EPO Register

Key points

• In translation: " the appellant [opponent] argued that catalog D22, which the division had not considered a printed document, could not be submitted in its original form, while the scanned version was of somewhat poorer quality. Furthermore, the color document D22 was stored in the European Patent Office's register only as a black-and-white copy, of even poorer quality."
• Note, indeed, even if you file a crisp prior art document, or in color, the EPO computer systems transform it into blurry black-and-white in the EPO online file. We don't know for sure what the OD sees on their screens (as far as I know). The other party must make do with the blurry black-and-white or greyscale version from the EPO online file - the EPO no longer forwards copies and does not forward the original PDF files as received by them. 
• "  Catalogue D22 appears to concern the prior use of the Xavax MI01 vacuum cleaner bag, see page 147 of D22. In this regard, the Division concluded that the opponent had not been able to provide any information on the dimensions of the welded areas perpendicular to the linear course of the weld, see paragraph 6.6 of the Reasons, which appears to concern feature M6. This prior use had been invoked in a letter dated 5 May 2022, where the second paragraph on page 5 appears to only address features 5 and 7. The letter dated 29 December 2022 does not appear to address the Xavax MI01 vacuum cleaner bag at all, see pages 22 and 23 with the bag from D23. The Board is therefore of the preliminary view, in relation to the Xavax MI01 vacuum cleaner bag, that due to the lack of timely submission regarding the disclosure of feature M6 in D22, even with the exclusive consideration of a scanned black and white copy did not violate their right to be heard."
• I don't fully understand the reasoning.
• Still, there was a substantial procedural violation: " In the present case, the Opposition Division measured the weld seam of one of the samples of the Xavax M308 vacuum cleaner bag filed as D23 and communicated the results to the parties, see the annex to the short communication of 21 February 2023. During the oral proceedings, the Division did not admit D23 for lack of prima facie relevance, as it considered that feature M6 of claim 1 of the main request was not disclosed in D23."
•  'the Division applied the correct criterion of prima facie relevance. The Chamber must therefore examine whether this criterion was also applied appropriately."
• The Board turns to the interpretation of the claim feautre at issue and ocmes to a different interpretation.
• " the opposition division considered feature M6 not to be disclosed in D23 because the appellant's measurements could not be reproduced due to a large scatter. This reasoning does not convince the board, since the opposition division had determined a value of 1.66 mm for feature M6 in its own measurements, see Figure 8 on page 12 of the appendix dated 21 February 2023. The contested decision does not provide any justification for why the division did not use its own measurement for the disclosure of feature M6. "
• I think that taking measurements on a sample is well beyond the scope of an examination of the admissibility of the evidence, or tantamount to admitting the evidence.  It just seems very weird to go into claim interpretation and detailed measurements, and quite different from what the Enlarged Board had in mind in G 7/93 r.2.6.  
• On a separate note, the EPO will allow color filing in the near future and will process them as color figures up to the publication (B1, I suppose). Let's see if the EPO Online File is also made capable of showing color documents. 

EPO 

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

https://www.epo.org/de/boards-of-appeal/decisions/t231493du1