EP 3 672 361 B1 relates to an induction heating device that clears condensation from a viewing window of a camera.
Claim1 starts with: “A windshield (20) or a cover-glass…..”
Brief outline of the case
The OD considered that the patent as granted was infringing Art 123(2).
The patent was maintained according an AR in which the alternative “cover glass” was deleted from claim 1. The opponent appealed.
The board set aside the OD’s decision and maintained the patent as granted.
The case is interesting in that the board held that Art 123(2) was not infringed, and the objection raised by the opponent was at best an objection of lack of sufficiency, a ground of opposition never raised by the opponent.
The proprietor’s point of view
The proprietor argued, that windshield and cover-glass fulfil similar functions and are synonyms and interchangeable can thus not be shared.
The OD’s decision
The OD held that the patent extended beyond the content of the application as filed, because the latter failed to provide a direct and unambiguous basis for the second branch of the claim, that is for the combination of a cover-glass with a heating device.
The OD held that the application was strictly limited to embodiments, in which the heating device was associated with a windshield.
The few passages of the description that referred to a cover-glass with a heating device were seen as relating to background information, or as being insufficient to establish a clear relationship between the cover-glass and the heating device.
In the absence of such a clear relationship, the OD held that the statement in the application regarding the suitability of the heating device for a cover-glass was not a sufficient basis for a claim directed to this combination.
The OD did not share the proprietor’s view that the terms cover-glass and windshield were used as synonyms in the application.
The board’s decision
The board did not agree that windshield and cover glass are synonyms and interchangeable.
For the board, the application, as a whole, nevertheless contained a direct and unambiguous basis for the claimed combination of a cover-glass with a heating device, as defined in granted claim 1.
The application associates windshield with a vehicle. Cover-glass, as commonly understood, applies to items intended to cover an object or space, and, in the absence of any more specific indication, means a cover for a camera lens that is in the optical path between the lens and the camera’s scene.
The OD based their findings on the observation that the originally filed description was completely silent about the relationship of the heating device with any cover-glass.
More specifically, the OD held that, the originally filed application did not disclose, directly and unambiguously, the feature of the secondary induction coil being in direct contact with the cover-glass.
In the board’s judgment, the lack of detail regarding the relationship between the cover-glass and the heating device, as relied upon by the OD, does not mean that the claimed combination has no basis in the application as filed.
Any lack of detail regarding this aspect of the invention might be relevant for the question of sufficiency of disclosure, but is without bearing on the question of whether the original disclosure contains a direct and unambiguous basis for the recited combination.
Art 83 on the one hand, and 100(c) and 123(2) on the other, define distinct conditions and are to be treated separately.
The question raised by the opponent as to the, missing or not, relationship between cover-glass and heating element, is not relevant under Art 100(c) or 123(2).
It might be an issue regarding sufficiency of disclosure, but that is a ground that was not raised by the opponent or the OD.
Comments
The opponent thought only of an attack under Art 100(c), but not under Art 100(b).
It is thus no surprise that most opponents bring all grounds under Art 100 when filing an opposition, even realising that some attacks will not be successful.
In the present case, it is however not certain that an attack under Art 100(b) would have been successful.
If an attack under Art 100(b) is successful, it cannot be overcome without ending with added-matter.
If an attack under Art 100(c), the proprietor often sits in an inescapable trap.
Both objections under Art 100(b) and (c) do however render moot any attack for lack of N or IS.
Comments
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