EP 3 468 222 B1 relates to a headphone. It aims at providing a headphone that does not completely shield the wearer off from the outside acoustic environment.
Brief outline of the case
For the OD, claim 1 as granted lacked N over D1. All AR on file were not allowable under Art 54, 56, 84 and 123(2). The proprietor appealed.
Contrary to the OD, the board found claim 1 novel, but lacking IS over D1. All the other AR, AR1, 2, 2A, 3 to 12 and 12A were not allowable under Art 56, 84 or 123(2). AR1mod to 7mod and 9mod to 12mod were not admitted under Art 13(2) RPBA.
For the board the difference with D1 lay in feature (d1): the high-frequency acoustic driver is carried by the support structure such that the high-frequency acoustic driver (122) is located closer to the user’s ear than the low-frequency acoustic driver (110).
The case is interesting in view of the change of objection from lack of N to lack of IS and the refusal .of the board to remit once it held N given, as well as the reasons for not admitting AR1mod to 7mod and 9mod to 12mod.
In the present entry we will discuss the lack of IS.
The opponent’s technical problem
In its notice of opposition, the opponent considered the following technical problem (TPO) associated with feature (d1): “arranging the ‘high frequency acoustic driver‘ (122) and the ‘low frequency acoustic driver‘ (110) relative to the ear in such a way that both the high frequencies of the ‘high frequency acoustic driver’ and the low frequencies of the ‘low frequency acoustic driver’ reliably reach the ear“.
The proprietor’s technical problem
In its statement of grounds of appeal, the proprietor considered the associated technical problem (TPP) as “improving an open headphone with low spillage“.
The board’s decision on lack of IS
Thee board found the distinguishing feature (d1) to constitute the result of a straightforward selection exercise relating to binary implementation choices dictated by practical needs, namely locating one of the respective drivers “closer” to the user’s ear than the other one.
For the board, neither the TPO nor the TPP can actually be derived from effects directly and causally related to the technical features of the claimed invention.
The TPO relies on the implicit assumption that the closer “high-frequency driver” position as per feature (d1) directly translates to a closer acoustic source as perceived by the user’s ear. This assumption is reasonable in a basic, direct-radiating open headphone, but this is not explicitly required by claim 1.
In relation to TPP, the board found that none of the other features specifically concern an open headphone, contrary to the proprietor’s allegations. The proprietor claimed that some limitations that both drivers are located “off of the ear” of the user necessitates an open arrangement.
While the board acknowledged that it is a plausible understanding that there may be an open arrangement, it is not the only one that is technically sound.
The skilled reader would in particular be aware that the phrase “off of the ear” does not necessarily exclude the presence of circumaural or supra-aural earcups. In circumaural or supra-aural earcups, the various drivers are always at a certain distance from the ear.
The board clarified that the derivability of a credible technical effect, for the purposes of assessing IS, from the original description may, if at all, only be seen as a necessary requirement but not a sufficient one in view of e.g. G 1/19, Reasons 124.
This means that the conclusions of G 2/21 cannot be used to bypass the fundamental requirement that the claimed features must credibly achieve the asserted technical effect: the decisive question remains whether the claimed features themselves, as understood by the skilled person, credibly bring about the technical effect over the entire scope claimed.
The bord noted that, feature (d1) only specifies the relative physical positions of the acoustic drivers and does not provide details on how the sound actually reaches the user’s ear.
The description suggests that the acoustic design of the chambers and openings/ports, and the use of acoustic resistance materials, are the primary means for achieving the desired radiation patterns – not simply the relative distance of the driver from the user’s ear.
The board found it difficult to discern a technical effect which feature (d1) would credibly achieve over the whole scope claimed. This feature provides, at most, a practical arrangement of the high- and low-frequency acoustic drivers in terms of their relative positions.
This means however that the objective technical problem, OTP, can, at best, be formulated as “how to practically arrange the high- and low-frequency acoustic drivers in the ‘alternate embodiment’ of D1 in terms of their relative positions“.
In relation to obviousness, the board found that the skilled person, starting from D1 and faced with the OTP, would have made a choice between two equally likely alternatives, namely to locate either the low-frequency acoustic driver or the high-frequency acoustic driver “closer” to the user’s ear when the headphone is worn as shown in Figures 13 to 15 of D1.
As a result, feature (d1) could not lead to the acknowledgement of an inventive step.
The explicit mention of “over-all high fidelity performance” in D1 reinforces the obviousness of placing the “high-frequency driver” closer to the user’s ear.
This is because high fidelity, by definition, requires accurate reproduction of both high and low frequencies. A skilled person would have therefore known, from basic acoustics, that high-frequency driver positioning is more critical for achieving high-fidelity sound than low-frequency driver placement and that it is in this respect beneficial to place the high-frequency driver closer to the user’s ear when in use.
Comments
The decision is interesting in that, at the end of the day, it is the deciding body which defines the OTP and not the parties.
The decision is also interesting in that, it held that the derivability of a credible technical effect, for the purposes of assessing inventive step, may, if at all, only be seen as a necessary requirement but not a sufficient one, cf. G 1/19. On the other hand, the conclusions of G 2/21 cannot be used to bypass the fundamental requirement that the claimed features must credibly achieve the asserted technical effect.
It is also well know that the low frequencies of a playing band are heard way before the high ones. Low frequencies are not as directional in their perception than high frequencies.
This is also why in domestic sound reproducing systems, a boomer for the low frequencies can be placed anywhere in a room, but the high frequencies drivers need to be aimed at the listener.
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