EP 3 446 216 A1 relates to a real-time environment and programmable logic controller and has been published as WO 2017/182467 A1.
The aim of the application is to enable the integration of additional functions with an indefinite function runtime into the real-time environment.
Prior art D5 discloses a real-time environment in which tasks (‘co-operative tasks’) are executed with a predefined task runtime. An additional function is executed in this real-time environment (‘pre-emptive task’). Its function runtime is within the specified task runtime.
Brief outline of the case
The MR was refused for added matter, AR1 for lack of N and AR2 for lack of IS.
The applicant appealed the ED’s decision
The appeal was eventually dismissed.
The MR was deemed lacking N over D5, AR1a was not admitted under Art 13(2) RPBA, and AR1 was lacking IS over D5.
The case is interesting as it is apparently the first decision in which G 1/24 is applied.
We will only look at the MR.
The applicant’s point of view
During the OP, the applicant referred to G 1/24 with regard to the disputed interpretations of the terms ‘task’, ‘additional function’, ‘indefinite functional duration’ and ‘wrapper function’.
According to the applicant, no additional function was disclosed in D5. Only tasks are carried out, but no additional functions. The additional functions according to the application are complex and therefore have an indefinite function duration. On the other hand, pre-emptive tasks have a fixed runtime.
At the OP, the applicant emphasised that the pre-emptive tasks would only exceed their running time in exceptional cases, for example in error situations, whereas the running time of the additional functions was basically indefinite.
During the OP, the applicant also emphasised that claim 1 makes a distinction between ‘tasks’ and ‘additional functions’. It was clear from the description that ‘tasks’ control actuators and sensors, whereas, for example, vision systems or condition monitoring would constitute ‘additional functions’.
The board’s decision
The board did not follow the applicant in its distinction between pre-emptive tasks and additional functions.
In particular, the board was of the opinion that the claimed “additional function” cannot by its nature be distinguished from a “task” – at least not with sufficient precision.
In both cases, these are programs that are intended to have (as far as possible) predictable runtime behaviour in a real-time environment. The fact that the “additional function” is labelled as “additional” and thus differentiated from the other claimed “task” is already fulfilled by the fact that the additional function is required to be terminated if the runtime is exceeded, but not by the tasks. This does not result in a substantive distinction between task and additional function.
Furthermore, it is not clear from the terms – even in the light of the description – how complex the “additional function” is in contrast to the “task” and how likely it is that the specified task runtime will be exceeded.
For one thing, the task runtime itself is not defined. Secondly, the application mentions not only vision or machine learning as examples of additional functions, but also condition monitoring, which carries out an “assessment of the condition of the production plant by measuring and analysing machine parameters”.
The board’s interpretation of G 1/24
For the board, G 1/24 does not define what it means in individual cases to consult the description and the drawings, but refers in this respect to the case law of the boards, cf. G 1/24, Reasons 1.
G 1/24 does not even expressly require that the definition of a term from the description must necessarily be used for the interpretation of a claim. The relevant question 3 was not answered as inadmissible and it follows from the answer to question 2 that such a definition cannot be disregarded, since it must be taken into account as part of the description and the drawings.
In the present case, the board referred to the description and drawings in accordance with G 1/24 and explained why, in its view, this reference would not justify a narrower interpretation of the claim wording.
In particular, it took into account that the application does not provide a definition (‘or similar information’) for the disputed terms, regardless of whether or under what circumstances such a definition would then limit the claimed subject-matter.
The present application only gives examples of additional functions, but it cannot be deduced from this how ‘tasks’ and ‘additional functions’ would differ in concrete and fundamental terms from those of D5.
Therefore claim 1 of the MR lacked N.
Comments
The present decision actually illustrates the difficulty in applying G 1/24.
As the board rightly noted that G 1/24 does not define what it means to “consult” the description and the drawings,
In the present case, the board came to the conclusion that the description could not allow a narrower interpretation of the claim in view of the description as wished by the applicant.
This is certainly due to the fact that the terms in the description were not precise enough in order to allow a distinction to be made between the prior art and the claimed features.
This might impose in the future that applications are drafted with more care as any imprecision in the wording used in the description could be interpreted to the disadvantage of the applicant. This could for instance be the case if, both the claimed features and their possible interpretation in the light of the description, are “encompassed” in the features disclosed in the prior art.
Comments
1 reply on “T 1561/23 – G 1/24 has a first strike”
First impression I have is that G1/24 is having exactly the desired effect, namely to bestow on the Technical Boards enough “wiggle room” to do what they see as justice.
This was an ex Parte case, in which the ED and the TBA heard only the Applicant’s side of the story and had to decide whether to grant or refuse patent protection. I look forward to the first case where the Board has to do justice between i) the owner of a claim to novel and non-obvious subject matter and ii) the public as represented by the opponent. The “gathered” referral case might be one example.