EP 3 497 276 B1 relates to a laundry washing machine.
Brief outline of the case
The opposition was rejected and the opponent appealed.
According to G 1/24 the board interpreted claimed features in the light of the description.
After interpreting claimed features in the light of the description, the board decided that claim 1 as granted was lacking N over D2 not mentioned in the ISR established by the EPO.
As the further AR were either lacking N or were unclear, the patent was revoked.
The features at stake
- an adjustable damping characteristic
- a constant damping characteristic
- arranged at a distance from one another in relation to the transverse axis (5) and adjacent damping units (6)
The proprietor’s point of view
Adjustable damping characteristic
The proprietor itself argued that it was irrelevant which damping property could be modified. Rather, what mattered was that the damping units differed in their design, with one allowing a damping property to be modified and the other not.
The proprietor also argued, that the description gives a consistent and uniform interpretation of “adjustable”, to be understood as “variably controllable during operation”, actually by means of electronic control.
The proprietor further argued that if the term “adjustable” was interpreted too broadly, the problem to be solved in the patent, namely to reduce operating noise by making the damping characteristic adjustable in all operating conditions, would not be achieved. Not being able to adjust the damping characteristics forces to make compromises.
Constant damping characteristic
With regard to a “constant” damping characteristic, it is sufficient if the damping characteristic remains constant over time or location. However, it can still be changed.
Arranged at a distance from one another in relation to the transverse axis and adjacent damping units
The proprietor argued that the phrase “relative to the transverse axis’” should be understood to mean that one damping unit is located closer to the front wall and the other damping unit closer to the rear wall of the housing. This follows from the position of the transverse axis. Furthermore, the term “adjacent” defines that the damping units were located next to each other and not offset around the circumference.
Damping units are arranged one behind the other in the direction of the transverse axis and cannot lie in a normal plane to the transverse axis. “Adjacent” is to be interpreted as “adjacent in the direction of the transverse axis”.
For the proprietor, mutually offset damping units would no longer be “adjacent” within the meaning of the contested patent.
The board’s decision
Adjustable damping characteristic
For the board , an “adjustable damping characteristic” simply means that it must be possible to adjust it, i.e. vary, a damping characteristic in some way. The interpretation therefore includes both the possibility that the characteristic can be continuously changed during operation and the possibility that the property can only be adjusted before installation, perhaps even only in steps, and cannot be varied during operation.
Looking at the description, it can be concluded that the embodiments show damping units with damping force that can be variably adjusted during operation by means of an electronic control system (8).
The board held that this does not justify interpreting “adjustable damping characteristic” in claim 1 more narrowly than its literal meaning and restricting it to adjustability during operation, especially not by means of electronic control.
The board concurred with the opinion, that not being able to adjust the damping characteristic, needs to enter certain compromises. This was however not a reason to accept a limited interpretation of the claimed feature.
Constant damping characteristic
The board interpreted the term “constant damping characteristic” to mean that any damping characteristic cannot be adjusted at all.
There is no direct definition of “constant” in the contested patent. Contrary to the proprietor’s broad interpretation based on the litteral meaning of the word “constant”, the board arrived at a different interpretation.
According to the description, the term “constant damping characteristic” is used as an antonym to the term “adjustable damping characteristic”. Based on this indirect but clear definition given in the description, the term “constant” is therefore to be interpreted as “non-adjustable”, i.e. unchangeable.
Arranged at a distance from one another in relation to the transverse axis and adjacent damping units
The board observed that, “with regard to the transverse axis” is not to be equated with “in the direction of the transverse axis” or “in a direction parallel to the transverse axis”.
At most, this requires some kind of relationship between the spaced arrangement and the transverse axis. However, this relationship does not have to relate to the direction of the axis. It could, for example, also be expressed by the fact that the two damping units are the same distance from the transverse axis.
The term “adjacent” merely defines the claimed subject matter in such a way that no further damping unit is arranged between the two adjustable damping units. Accordingly, the damping units can be arranged offset both in the circumferential direction and in the direction of the transverse axis.
Both arrangements are “adjacent”, and in both arrangements there is a reference to the transverse axis with regard to the property “adjacent”. There is therefore no basis in the contested patent for a restrictive interpretation of the term “adjacent” as “adjacent in a specific direction”.
Although the description and figures must be consulted when interpreting the features of the claims, cf. G 1/24, headnote, the description of a specific embodiment may be disregarded in accordance with the principles developed in case law with particular reference to T 2684/17, T 1871/09, T 1473/19, T 1465/23, T 161/24, and T 1999/23, with reference to the CBA, 10th edition, II.A.6.3.4, and cannot, as a rule, be used to restrict the interpretation of an object claimed in more general terms.
That one damping unit is located closer to the front wall and the other closer to the rear wall would not be technically feasible and therefore not a technically meaningful definition for all laundry drums falling under the claimed subject matter.
The definition given if the description is only valid if the axis of rotation of the laundry drum runs from the front wall to the rear wall, but not if the laundry drum has a vertical axis of rotation
The board therefore saw no reason in the description of the embodiment to interpret the term “adjacent” restrictively as “adjacent in a specific direction”.
Comments
When interpreting claimed features after having consulted the description, the present board confirmed a long line of case law, that a clear claimed feature cannot receive a limited interpretation on the basis of the description.
One conclusion can be drawn from the present decision: giving a limited interpretation of claimed features in view of the description, was never and is not any longer possible at the EPO.
This part of the theory that a patent is its own dictionary can be relegated to oblivion.
We just have to wait of a series of decisions dealing with the broadening of claimed features in the description, for the complete theory of the patent being its own dictionary to be fully relegated to oblivion.
What is valid for a limiting interpretation should be equally valid for broadening of features. In this case, the possible broadening has much more deleterious effects for third parties. I refer here to the Agfa/Gucci case, commented in the present blog.
This might not be the consequence of G 1/24 lots of representatives wished to see emerging.
On the procedure
It is interesting to note that D2 bears the same classification unit as the patent, and yet, it has not been found when the EPO established the ISR.
Either the examiner did not read the description, and if he did, he read the limitations queried by the board into the claims.
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