EP 3 466 240 B1 relates to a method for operating a self-propelled agricultural working machine.
Brief outline of the case
The OD decided that claim as granted and of AR1 lacked N under Art 54(3) over D7=EP 3 299 995. The same applied to AR1 and the patent was maintained according to AR2.
Opponent 2 appealed.
The board held that claim 1 lacked N under Art 54(3) over D7 and D8=EP 3 299 996.
In appeal the opponent cited Dz=EP 3 494 770 A1 in order to interpret one of the claimed features.
This document was admitted in the procedure by the board.
AR3 was not admitted in the procedure pursuant to Art 12(3)+(5) RPBA.
The patent was thus revoked.
The case is interesting in the application of G 1/24 made therein.
The opponent’s point of view
The opponent argued that the ‘field level’ should be understood as the level of the upper edge of the crop. It justifies this by referring to paragraph [0020] of the patent.
The opponent has put forward further arguments based on Dz.
The opponent argued that the term ‘top view of the field level’ is used in paragraphs [0007], [0008], [0028] and [0055] of Dz. During harvesting, this can only refer to a top view of the level of the upper edge of the crop. Paragraph [0028] of Dz describes the field level in the same way as in the patent.
The board’s decision
The board applied G 1/24, and referred to the order.
The board concurred with the interpretation of the OD, according to which the term ‘field level’ is to be understood as the ground level of the field.
According to paragraph [0010] of the patent, the ‘field level’ is ‘the plane along which the relevant surrounding area extends. Generally, this is the horizontal plane, provided that the relevant surrounding area does not slope relative to the horizontal.
The term ‘the horizontal plane’ used here leaves open whether it refers to the ground level of the field or to a plane parallel to it above the ground.
According to paragraph [0041] of the patent, reference number 20 denotes the ‘field plane’. In Figure 2 of the patent, it is clearly evident that reference number 20 denotes the ground level of the field and not a plane parallel to it, such as the plane of the upper edge of the crop.
The board was not convinced by the reference to paragraph [0020] of the patent, because the sensor system is still in a raised position even if the ‘field level’ is interpreted as ground level.
In Dz, the field level is designated by reference number 14, cf. paragraphs [0028] and [0056]). Figure 2 in Dx shows that reference number 14 denotes the ground and not the upper edge of the crop.
In view of this unambiguous designation, a skilled person skilled would also understand that a ‘top view of the field level’ refers to a view from above of the ground of the field, as opposed to the camera images and the laser-based sensor, which depict the field from an oblique angle.
The board therefore took the view that, even taking document Dz into account, the interpretation of the term ‘field level’ would not change.
Against this background, it can be left open whether terms from one patent may at all be interpreted on the basis of an understanding of a term from another patent document, even if the latter claims the same priority.
With this understanding the board decided that claim1 as maintained lacked N over D8.
Non-admissibility of AR3
In its response to the appeal, the proprietor did not comment in any way on the extent to which the features added in AR3 are capable of overcoming the opponent’s objections to AR2.
Comments
Although the board left it open whether terms from one patent may at all be interpreted on the basis of an understanding of a term from another patent document, even if the latter claims the same priority, the answer would be negative, should it have been given.
Applying G 1/24 is consulting the description of the patent in suit and not consulting the description of different patent document. See also T 1816/22, Reasons 1.2-1.3.
Any reference in the US style of “incorporation by reference” is not acceptable at the EPO. The conditions for being acceptable are set out in GL H-IV,2.2.1.
Non-admissibility of AR3
The present RPBA are in force since January 2020. It is surprising that the proprietor and/or its representative are manifestly not aware about their requirements.
Filing an AR without any substation leds to its non-admissibility in appeal. This is nothing new under the sun.
By the way, the same applies if first instance.
On the procedure
Neither D7 nor D8, prior Art under Art 54(3),were mentioned on the ESR.
The patent as well D7 and D8 have the same applicant/proprietor.
It is therefore surprising that the ESR only mentioned 1 document classified X,D,A and two documents classified A.
Something must have gone wrong with the “topping-up” search. The classification of the patent and that of D7 and D8 seems to have gone astray. The patent should have been classified in G06V10/.. and the search carried in there as well. D7 and D8 are classified either entirely in G06V (D7) or partly therein (D8)
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