EP 3 329 242 B1 relates to an apparatus to simulate driving a land vehicle.
The simulator comprises a mobile platform carrying a driver station that moves over a fixed base surface. The movement is generated by a cable-driven system with actuators, enabling controlled translations in two directions and rotation (yaw) around an axis perpendicular to the plane of the base surface.
Brief outline of the case
The OD decided that claim 1+11 as granted lacked IS over D6=WO 2013/114179+D4=US 5148716. The patent was maintained according to AR2.
Both proprietor and opponent appealed.
The board decided maintenance as granted, i.e. rejection of the opposition.
The opponent’s point of view
The opponent argued that the term “sliding means” in claim 1 had to be interpreted broadly and that the mobile platform of D6 comprised such sliding means. The skilled person starting from D6 would consider D4 and find a solution to the formulated technical problem of how to increase the amplitude of the yawning rotation of the mobile platform.
The skilled person, when seeking to increase the amplitude of yawning rotation in the mechanism of D6, would find the solution in this passage of D4. Consequently, the skilled person would combine the teaching of D4 to use belts or cables as movement actuators in the mechanism of D6 and arrive at the claimed invention in an obvious manner.
The opponent argued that in the context of the so-called “problem-solution approach”, the document to be combined, “secondary document”, with the CPA did not need to state explicitly that it solved the formulated technical problem of the closest prior art, “primary document”. It was sufficient It was sufficient that the skilled person would have recognised that it did so.
The proprietor’s point of view
The proprietor argued that D6 did not disclose any “sliding means” in the sense of claim 1. The skilled person would not have combined D6 with D4.
D6 described a vehicle simulator, which was a bulky and heavy device. The focus of the mechanism was on acceleration so that the experience of the user could be as close as possible to driving a real vehicle. In contrast,
D4 described a much smaller motion mechanism where high speed and accuracy were of importance .
Therefore, it could not reasonably be said that there was one skilled person covering the entire technical field of motion mechanisms but more specialisation was necessary.
The skilled person of D6 was not the same as the skilled person of D4. When starting from D6 the skilled person, a specialist in motion mechanisms for vehicle simulators, seeking to increase the amplitude of the yawning rotation of the mobile platform of the vehicle simulator would not have considered D4.
The board’s decision
The board did not consider the definition of the skilled person decisive in the present context. Even if the opponent’s general definition is followed, the skilled person would readily recognise that D6 and D4 describe different motion mechanisms relating to different contexts and different applications.
D6 describes a vehicle simulator with a bulky and heavy mobile platform, which simulates a real world experience (driving a vehicle) to the user, who is sitting on/in it. The focus is on the acceleration of the movements so that the user can experience comparable inertia to the one they experience when driving a vehicle. Speed and accuracy of movements do not play an important role.
D4 describes a moving platform used in machining processing, assembling, measuring, etc. An object is placed on the platform and is moved around. The motion mechanism is destined for a workshop application and the accurate determination of the position of the moving platform as well as the speed of moving from one position to another are of crucial importance. Acceleration does not play any role in this context.
The board agreed with the opponent that there is no need for the “secondary document” to state explicitly that it solves the formulated technical problem. However, the skilled person seeking to solve this problem needs a reason to consider the specific “secondary document” before they can be in the position to recognise that it solves the problem.
The board noted that the skilled person does not find the “secondary document” by chance and then looks into it and finds a solution to the problem they seek to solve. The case law refers to the so-called “could-would” approach, cf. CLBA, 11th edition 2025, section I.D.5.
In other words, the relevant question is whether or not the skilled person starting from the closest prior art, here D6, and seeking to solve the technical problem of increasing the amplitude of the yawning rotation of the mobile platform would consider D4.
For the board, the skilled person would have to recognise that the features providing an improved speed and accuracy in the movement of the mobile platform in apparatus of D4, i.e. the belts, also solve the problem of increasing the amplitude of the yawning rotation of the mobile platform in the vehicle simulator of D6. In the absence of any relevant indication in D4 the board’s view was that only with hindsight the skilled person would have arrived at such a conclusion.
In the present case, even if the skilled person tried to apply the teaching of D4 in the mobile platform of the simulator of D6, additional modifications of the mechanism of D6 would have been necessary.
Additional measures may have been necessary to limit the amplitude of the rotation of the mobile platform for the vehicle simulator to operate. In the board’s view, such measures would go beyond what could be considered obvious for the skilled person.
Comments
In the problem-solution-approach, once the CPA has been chosen (“primary” document), negating IS once the OTP has been determined, does not resumes itself to look for a document (“secondary” document) which would fit the “gap” to arrive at the claimed invention.
Whilst it is not necessary for the “secondary” document to contain a pointer to the solution of the OTP , it is necessary for the skilled person to have a good reason for taking into account the “secondary” document.
If it is necessary to heavily modify the “primary” document in order to fit the “secondary” document, the skilled person would not envisage to take the “secondary” document into account.
This might be pretty obvious, sorry for the pun, but it is good to be reminded of it.
Comments
Leave a comment