EP 3 618 976 B1 relates to a device and method for selecting packages moving at high speed.
The idea behind the invention is to differentiate between different types of packages on a conveyor belt, so as to end up with two distinct streams of packages of respectively the same type.
Brief outline of the case
The OD decided that claims 1+10 as granted lack N over D2=DE 2 358 185. It eventually decided maintenance according to AR12.
Both proprietor and opponent appealed.
The board decided that claims 1+10 as granted were not lacking N over D2, and rejected the opposition.
The decision of the board turned about the interpretation of the terms “decoration” [feature 10c], “individual disengaging means” [feature 10h], “identification in the selection area” [feature 1c] and “chronological order” [feature 1h] in claims 1 and 10 as granted.
The proprietor’s point of view on “decoration”
The proprietor interpreted the term ‘decoration’ as an ornament applied to the packaging. This interpretation was based on generally accepted definitions from dictionaries, as well as on the description of the contested patent, in particular paragraph [0032], which explicitly mentions a device for applying decoration.
The proprietor argued that a ‘decoration’ does not encompass every visual characteristic of a packaging, but rather constitutes an applied pattern or ornament.
The opponent’s point of view on “decoration”
The opponent took the view that any visual characteristic, including the colour of the material, should be understood as a decorative feature and argued that the description contained no limitation and that a broad interpretation was therefore permissible. In the contested decision, the OD had argued similarly that the term ‘decorative feature’ should be interpreted broadly because it was not defined in more detail in the patent.
The board’s decision on “decoration”
Terms with a generally recognised meaning do not, as a matter of principle, need to be defined in further detail in the description of a patent. Unlike the proprietor, the opponent has not provided any evidence to support any of its arguments regarding the interpretation of the term “decoration” to mean that any visual characteristic falls within its scope. Consequently, the opponent’s arguments on this point amount to nothing more than unsubstantiated assertions.
That claims 1 and 10 specify that the “decoration” is applied “to each … package unit” was completely ignored both by the OD in its decision and in the opponent’s submissions. It cannot, therefore, be the packaging itself or the colour of the material it is made of.
The proprietor’s view on “individual disengaging means”
The proprietor interpreted “individual disengaging means” as disengagement elements which can be moved independently of one another and are each assigned to a previously identified package unit.
The supported this interpretation by referring to Figures 2 and 6 of the contested patent, which show different distances between different disengagement means, indicating individual mobility.
The opponent’s view on “individual disengaging means”
The opponent argued that the term merely implied the presence of individual disengagement means, but not their individual mobility. The opponent based its argument on the description, without, however, being able to derive a definitive definition from it. The Board is not convinced by this interpretation.
The board’s decision on “individual disengaging means”
For the board, the wording of the claim states that the individual disengagement means “can be accelerated to the same speed as the conveyor belt within the selection area and are thereby assigned to a specific and previously identified package unit”.
The individual mobility and the assignability of the disengagement means therefore constitute central features of the claimed invention, which cannot be disputed merely by asserting the contrary or by ignoring the wording of the claim.
The proprietor’s point of view on “in the selection area”
The proprietor argued that the “selection area” extends only along a section of the conveyor belt and that, within this zone, the individual disengagement devices are accelerated.
The opponent’s point of view on “in the selection area”
The opponent argued that acceleration could also take place outside the “selection area”.
The board’s decision on “in the selection area”
For the board, the opponent’s interpretation that acceleration could also take place outside the “selection area” is irrelevant according to the precise wording of the claim.
The proprietor’s point of view on “chronological sequence”
The proprietor argued that in the context of the chronological sequence there is simultaneity between the acceleration of the release mechanism and the assignment to a previously identified package unit.
The opponent’s point of view on “chronological sequence”
The opponent attempted to construct an alternative chronological sequence in which identification takes place only after acceleration, or to dispute the chronological sequence entirely.
The board’s decision on “chronological sequence”
For the board, the opponent’s interpretation contradicts both the explicit wording of the claim and the description.
In this regard, the board noted that the acceleration and the assignment take place simultaneously and cannot be interpreted as merely a causal link. The board considered the OD’s reinterpretation in this context to be incorrect. The wording of claims 1 and 10 is neither unclear, nor does the description suggest that the expression should be interpreted contrary to its ordinary meaning.
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The decision is interesting in that, without explicitly referring to G 1/24, the board gave primacy to the claims and considered that the description did not allow to give some features a meaning different from their ordinary meaning.
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