EP 3 449 030 B1 relates to an apparatus for the continuous hot dip coating of a metal strip, and the associated method.
An important feature was that the outer wall (28) of the rear pouring compartment (29) being configured to form, with the passage plane of the metal strip (1), an angle (α) greater than or equal to 15° in a usage configuration.
We will concentrate on this feature.
One figure of D7 is as follows
The proprietor’s point of view
For the proprietor the description of D7 does not contain any information on the orientation of the compartment walls or even on its geometry, which would make it possible to understand the function of the particular orientation shown in the figures.
Neither the angle of orientation of the belt nor that of the outer wall of the compartment, let alone their relative orientation, is discussed in D7. Nor can the angle α be deduced from the schematic drawings alone.
The proprietor argued, that the D7 installation is not designed for an operation during which liquid metal would flow from the liquid seal to compartments 31 and 32.
Furthermore, even if the system were to operate in this way, the position of the outer walls on the outside of the sheath would not give it any function within the meaning of the patent either, since the flow of the liquid seal could not come into contact with the outer walls.
Thus, the OD’s conclusion that the angle α follows directly and unambiguously from D7, without the need for the person skilled in the art to understand the function of this orientation, is not in line with the case law of the boards.
The opponent’s point of view
For the opponent the skilled person will understand that the drawings of D7 clearly indicate an angle greater than 15°, since each of figures 3 to 6 indicates angles well in excess of 15°.
The board’s decision
The board acknowledged that the angle α does not have the same technical meaning in the device of D7 device as in the patent.
For the board, the relative arrangement of the outer walls on the outside of the sleeve disclosed in D7 is not excluded by the wording of claim 1. Also, such outer walls arranged on the outside of the sleeve form an angle with the plane of passage of the metal strip.
It is true that Figures 3 to 6 are neither technical drawings nor photographs, nor are they indicated as a scale representation in D7, either explicitly or by means of a respective dimensioning in the figure. It is also true that the angle of orientation of the strip and that of the outer wall of compartment 32, as well as their relative orientation, are not mentioned in D7.
However, according to established case law, deducing features from schematic drawings is not excluded in principle, but requires a case-by-case analysis, CLBA, 10th edition, 2022, II.E.1.13.2. In the present case, the board concluded that the angle α is disclosed.
All the metal strip immersion angles shown in Figures 3 to 6 of D7 are well above the lower limit of the 15° range. It is therefore not necessary to deduce concrete values from the figures.
The board further held that an angle outside the claimed range is technically not viable.
The inclined feeding of the metal strip (1) into the bath (40, 40a) shown in D7 is also convincing from a technical point of view, as the annealing furnace (10) is essentially shown next to the bath, with immersion of the metal strip right from the edge of the bath. In such a configuration, the skilled person would not, for technical reasons, consider an angle so steep as to fall outside the claimed range.
In all documents D1 to D6, the annealing furnace (if shown) is also arranged next to the metal bath, and an inclined feed of the metal strip whose inclination is clearly greater than 15° can also be observed.
Thus, for the skilled person, all of Figures 3 to 6 of D7 already indicate a certain angle of the metal strip to the vertical, an angle which at least considerably exceeds the 15° limit. Even without explicit disclosure of this in D7, the result is an angle within the range greater than or equal to 15° in a usage configuration.
The board also referred to T 141/16, Reasons 2.5 to 2.7, in which a similar issue was discussed.
Comments
Patent figures are schematic in nature, and it is difficult to extract any exact values from them.
The present decision is an example to the contrary, whereas it can be added that that determining an angle might be possible, but most probably not a dimension, or even a relative dimension.
On the procedure
The ISR established by the EPO mentioned 6 documents of category A, amongst them a Korean document.
It is therefore surprising that the search did not find D7/D7t=KR 2013-0044972, as the patent and D7 share two IPC classes, C23C2/00 and C23C2/40, and the search has been carried out in C23C.
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