EP 2 880 468 B1 relates to a light grid unit, light grid securing unit and automatically driven gate provided therewith. When closing a (roller) door, a light barrier in both guide rails is used to monitor whether objects, people, vehicles or the like are in the centre plane of the door path.
When closing a (roller) door, a light barrier in both guide rails is used to monitor whether objects, people, vehicles or the like are in the centre plane of the door path.
Brief outline of the case
The OD maintained the patent according to AR1 and the opponent appealed.
The board held that claim 1 as maintained infringed Art 123(2).
The same applied to AR1-4. AR5-9 were not admitted in the procedure.
The patent was thus revoked.
At stake is the combination of two features (1.6) and (1.7b) as well as an intermediate general
The opponent’s point of view
The opponent argues that the combination of features (1.6) and (1.7b) was not originally disclosed.
The last paragraph of page 9 shows that feature (1.6) was only disclosed in connection with other features fixed on the rail. This connexion is achieved, inter alia, with the aid of a specific device, which is described immediately before the disclosure of feature (1.6) on page 9 of the description as originally filed.
This is the only place where feature (1.6) is disclosed. In particular, feature (1.6) is not disclosed in connection with the embodiment example of Figures 12 to 16.
The proprietor’s point of view
The proprietor argued that the technical teaching of the overall disclosure conveyed to the skilled person, and in particular page 10, first and second paragraphs and the last two paragraphs on page 12, make it clear to the skilled person that the last paragraph of page 9 also refers to the example of Figures 12 to 16.
From the information in the last line of the description (‘the centre of the wider door leaf 16 is monitored’), the skilled person implicitly understands that feature (1.6) was meant to apply also to Figures 12 to 16. Thus, feature (1.6) is disclosed for both embodiments and can be isolated from the specific context of the various embodiments.
The board’s decision
The board agreed with the opponent that feature (1.6) is only disclosed in connection with the embodiment example of Figures 1 to 11 and thus only in connection with feature (1.7a), but not in connection with the embodiment of Figures 12 to 16 and thus in connection with feature (1.7b).
According to page 10, first section, Figures 1 to 11 belong to one embodiment and Figures 12 to 16 belong to another embodiment, which is complementary to the first embodiment example, since the spacer according to feature (1.7b) cannot be combined with a projection 60.
A “monitoring of the centre of the door” is a much broader concept than when the centre plane of the door leaf extends through the centre plane of the light plane of a light grid, and may have other aspects.
The skilled person knows that one embodiment of the feature “monitoring the centre of the door” can be fulfilled by feature (1.6), but there are also other possibilities, namely, for example, that not exactly the centre plane of the door leaf is monitored, but a wider area that is defined as the centre.
The board added that, when examining an amendment under Art 123(2) whether a combination of features was originally disclosed, the “gold standard” does imply that the combination of features is possibly deducible from the description by the skilled person’s common sense, or that the skilled person can deduce the claimed combination from various embodiments, but that the combination is “directly and unambiguously” disclosed.
For the board, there was neither a direct nor an unambiguous disclosure of the combination of two features (1.6) and (1.7b).
The proprietor referred to the functional link between feature (1.6) and other features of the first embodiment. It argued that the other features shown in the figures and described in the associated description are not functionally related to feature (1.6).
In this regard, the board was of the opinion that Figure 1 and the corresponding embodiment on pages 8 and 9 of the description as originally filed disclose many non-optional features, all of which are related to feature (1.6), as these features in sum lead to the result to be achieved according to feature (1.6).
Consequently, the features of the embodiment shown in Figure 1 are functionally related to feature (1.6) and cannot be dissociated from said feature.
For example, claim 1 does not contain the functional feature described immediately before the text passage at the end of page 9. The above-mentioned text passage refers directly to this feature, as it allows the light plane to be aligned with the centre plane of the door, e.g. if the door track runs at a slight angle.
Said text passage is also related to other features not listed in claim 1, such as a C-shaped side channel for receiving the clamping screws or other means for fastening the holder to the profile housing. Without such fastening means, the profile housing cannot be fastened on the side facing away from the rail by the holder, so that the condition in functional feature (1.6) is fulfilled, namely an exact centred alignment of the light grid element.
The text passage quoted located at the end of the description of the first embodiment defines a functional relationship which is the sum of the preceding features. Isolating this functional feature by omitting the preceding features that work towards this functional feature is therefore not possible without an impermissible intermediate generalisation.
Thus, feature (1.6) can thus not be isolated in the broader context of the subject-matter of (original) claim 1 (impermissible intermediate generalisation).
In particular, many elements not listed in the claim but shown and described in Figure 1 contribute to achieving the objective defined in feature (1.6), namely guiding the door slats exactly in the centre of the plane.
Comments
The decision reminds clearly that the “gold standard” does not require that a combination of features can merely be deduced from the description by the skilled person’s common sense, or that the skilled person can deduce the claimed combination from various possible embodiments of the disclosure.
In other words , the decision merely reminds that the content of an application as filed may not be considered as a mere reservoir from which individual features pertaining to separate sections can be combined in order to artificially create a particular combination.
See for instance T 1334/09, Reasons 3.3.1, T 296/96, Reasons 3.1 or T 776/16, Reasons 3. This is a further criterion which can be used when assessing added matter next to the more common standard of “directly and unambiguously derivable”.
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