EP 4 111 892 A1 relates to an aerosol generating device in which data concerning the progression of an operational phase of the device is visually conveyed to a user of the device.
Brief outline of the case
The application was refused for lack of IS, and the applicant appealed.
The board confirmed the refusal.
The case is interesting in that it deals with G 1/24 when it comes to the choice of the CPA, and with presentation of information.
In the present blog entry we will deal with claim interpretation.
The applicant’s point of view on claim interpretation
Applying the findings of G 1/24 to the present case, the inner and outer lighting arrays in claim 1 should be interpreted in the light of the embodiment described in the paragraph bridging pages 19 and 20 and shown in Figures 1 (see above) and 4 of the originally filed application.
In that embodiment, the outer and inner lighting arrays each had a respective display window through which light emitted by the corresponding lighting means of the arrays was directed. Since the windows were distinct structural elements, the lighting arrays, of which those windows formed part, were likewise distinct structural features of the aerosol-generating device hardware.
The board’s interpretation of the claim as covering a continuous LED area whose inner and outer parts were selectively activated by software disregarded the presence of the two separate windows and was therefore incorrect.
In fact, that interpretation already failed in view of the claim wording alone. The claim clearly stated that the shape and placement of the lighting arrays did not change over time, implying that these arrays were distinct structural features of the aerosol-generating device’s hardware and not merely transient visual effects produced by the device’s software.
As a consequence of this incorrect interpretation, D1 was taken as the starting point for the assessment of inventive step. However, under the correct interpretation of the claim, D1 would not have been a suitable starting point, since it disclosed an aerosol-generating device comprising only a single illumination region located behind one translucent window, rather than two illumination regions arranged behind different windows, as required by claim 1.
D2, which disclosed four sets of petal-shaped LEDs arranged behind respective windows and thus multiple distinct lighting arrays, was a more appropriate starting point; however, the claimed subject-matter involved an inventive step even when starting from this more promising prior art.
The claimed arrangement of the outer and inner arrays provided a compact footprint, thereby saving space on the device. The case law recognised compactness and efficient use of space as indicators of technical character. Moreover, this arrangement allowed the control electronics and the connections between the control electronics and the lighting arrays to be accommodated within a correspondingly compact area of the aerosol-generating device.
Starting from D1, the skilled person would not have thought to provide two separate lighting arrays, each with its own window. The reason for this was that there was not enough space to add another lighting array with its own window surrounding the illumination region of D1, as that region already extended across the entire available space.
On the basis of G 1/24, the applicant submitted that claim 1 should be interpreted as defining two windows, even though its wording was not limited accordingly.
The applicant also argued that recourse to the description and drawings was not even necessary, because the wording of the claim itself implied that the shape and placement of the lighting arrays did not change over time; they were permanently present on the device.
This, in the applicant’s view, rendered the board’s interpretation untenable, since, if the arrays were merely generated by controlling LEDs, they would only be displayed when the corresponding control software was executed and would thus not be permanently present.
The board’s decision on claim interpretation
The applicant argued that, applying the findings of decision G 1/24 and in light of the embodiment described in the paragraph bridging pages 19 and 20 and shown in Figures 1 and 4 of the application as filed, the claim should be interpreted as including two separate translucent windows, one for each of the two lighting arrays.
If this interpretation were accepted, the claimed lighting arrays would be distinct hardware units due to the presence of the two windows, rendering the above interpretation untenable and thus calling into question the suitability of D1, which disclosed only one window, as a starting point for the assessment of inventive step.
The board noted that the type of argument raised by the applicant has been frequently encountered in recent case law.
The board did not subscribe to the applicant’s reading of G 1/24. In the board’s view, the fact that the description and drawings must be consulted for the purpose of interpreting a claim does not justify reading into the claim limiting features that are absent from its wording and disclosed only in an embodiment of the invention.
Such an approach would be inconsistent with the established case law of the boards of appeal on claim interpretation, which G 1/24 did not overturn.
The board further noted that its understanding of G 1/24 is supported by a considerable number of recent decisions, for example T 2027/23, Reasons 3.5.4 and 3.5.6, and T 1999/23, Reasons 5.6 to 5.10.
Contrary to the applicant’s view, the board could not see that the claim excludes embodiments in which the arrays are only provided during the period in which the software providing them is executed.
The board did thus not accept the applicant’s interpretation of claim 1 and judged that its own interpretation is to be used as the basis for assessing inventive step.
Comments
The present decision confirms the line of case law following G 1/24 according to which a narrow claim interpretation based on description and drawings is not accepted, when the corresponding features are not found in the claim.
The present decision is also interesting, in that it makes clear that the interpretation of the claim by the applicant is not determining when it come to the choice of the closest prior art.
T 2027/23 has been commented in the present blog.
The same applies to T 1999/23.
The present decision, next to the previous ones, thus contradicts T 439/22.
The admissibility of the referral G 1/26, attempting to reopen the discussion of the way G 1/24 has to be applied, is thus even more questionable.
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