EP 3 668 764 B1 relates to a method for decelerating a vehicle, in particular a commercial vehicle and an electro-pneumatic brake system for carrying out the method and vehicle having an electro-pneumatic brake system.
Brief outline of the case
The OD decided maintenance according a new MR.
The OD held that claim 3 of the MR combines the features of granted claims 1 and 5.
The opponent appealed.
The board decided that claims 3 and 9 as maintained lacked N over D1=EP 2 576 297.
The board decided maintenance according to AR5 and remitted to the OD for adaptation of the description.
In AR5, all the “or” formulations were deleted.
Claim 3 as maintained reads
Method for decelerating a vehicle comprising an electro-pneumatic braking system with at least one front axle and at least one rear axle, a braking value generator with at least one sensor for generating a brake control signal for controlling and/or regulating the brake system and at least one axle modulator for the front axle of the vehicle for controlling and/or regulating at least one front axle brake pressure on the at least one front axle and/or at least one axle modulator for the rear axle of the vehicle, for controlling and/or regulating a rear axle brake pressure (13) at the at least one rear axle of the vehicle,
characterised by the following steps:
- generating a redundancy signal at a first axle, the front axle or rear axle, or a trailer control valve
- controlling and/or regulating an auxiliary brake pressure on another axle, the front axle or the rear axle, by means of the redundancy signal.
The board’s decision
The board noted that the wording of independent claims 3 and 9 as maintained contains a large number of “and/or” formulations.
Claim 3 in one of the “and/or” combinations, adjusted for the reference symbols, reads as follows, whereby the other alternatives have been deleted:
Method for decelerating a vehicle, comprising an electro-pneumatic braking system with at least one front axle and at least one rear axle, a brake value generator with at least one sensor for generating a brake control signal for controlling the braking system and at least one axle modulator for the rear axle of the vehicle for controlling a rear axle brake pressure on the at least one rear axle of the vehicle, characterised by the following steps:
a) generating a redundancy signal on a first axle, the front axle
b) controlling an auxiliary brake pressure on another axle, the rear axle, by means of the redundancy signal;
On this basis, the board held that claim 3 lacked N over D1.
Comments
In the presence of a large number of “and/or” formulations, the board showed a practical way to deal with such claims: start by deleting the “or” formulations and rewrite the claim only taking into account the “and” formulations. This gives a good idea of what the claim is intended to protect.
On the search procedure
As the ISR only mentioned two documents of category A, the IPER was positive as far N or IS were concerned. No clarity objection was raised. Upon entry in the European phase, a patent was directly granted.
EP 3 668 764 B1 bears the IPC classification units B60T8/32, B60T13/66 and B60T8/26. The ISR established by the EPO has taken place in B60T
D1=EP 2 576 297 bears, inter alia, the classification units B60T8/32 and B60T13/66. In total D1 was bearing no less than 13 IPC classes in B60T. The ISR established by the EPO has taken place in B60T.
It is thus surprising that D1 has not been found during the IS carried out by the EPO.
On the examination procedure
What the board did, could have been done by the SD and the ED. The search and examination result might have been way better, but it would have cost time.
Claim 1 as granted already mentioned a large number of “and/or” formulations. Due to their large number clarity of the claim was manifestly impaired. The ED did nevertheless accepted to grant of an unclear claim.
On the opposition procedure
It its reply to the opposition, when filing the MR, the proprietor noted that no objections regarding clarity were raised at the conclusion of the examination procedure. The proprietor rightly added that this meant that the claims granted are clearly and unambiguously worded. To be honest this was not true.
As the “and/or” formulations were present in the claims as granted, it was not possible to query the clarity of the claim, cf. G 3/14.
There again, the OD could have done what the board did and come
Overall conclusion
The whole procedure, be it search, examination and opposition can be considered sub-optimal.
In all phases of the search, examination and opposition, the claims should have been read with the “or” formulations removed.
The blame does not necessarily go the examiners, but to the system pushing for ever more production, but at the same time claiming that the quality of the work delivered by the EPO is high.
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