The present decision is interesting for two aspects:
- Holding OP in the form of a ViCo in the future and discretion given to the BA in Art 15a(1) RPBA20.
- Common general knowledge without any evidence but the personal knowledge of members of the BA.
OP by ViCo
In view of the pandemic developments and the resulting high incidences in Bavaria at the relevant time (21.03.2022), the risk for an infection for all participants, including the board, was weighed up against the respondent’s reservations as to holding VICO-based oral proceedings, the complexity of the case, and the suitability of the case for a hearing in this format.
The board came to the conclusion that a ViCo-based hearing was indeed a suitable format for such proceedings under Article 15a(1) RPBA
The Board added that the compliance of Article 15a RPBA with the EPC has not been questioned by the Enlarged Board of Appeal in case G 1/21, whether or not a “general emergency” applies.
Article 15a RPBA thus remains applicable, without any qualification, to these and future appeal proceedings.
Lack of inventive step
The patent was maintained according AR3 and the joint opponents appealed this decision.
The patent concerns the wireless transfer of content such as weather information, voice and in-flight entertainment (IFE) between an aircraft 108 and a server 106 of a ground station while the aircraft is at a parking gate of the ground station
A well-known system for this purpose is the so-called “Gatelink” approach.
According to the patent, the implementation of this approach typically requires a modification of the airport facility. To address this, the patent proposes a mechanism to prioritise content transfer in accordance with at least the available link speed and the anticipated connection time between aircraft 108 and server 106.
Claim 1 as maintained comprised feature (f) which reads as follows
(f) in accordance with at least one of available link speed and anticipated connection time between the first communication device and the second communication device (106).
The board endorsed the objective technical problem identified in the appealed decision and frames it as “how to provide for an alternative implementation of the traffic prioritisation mechanism of E21”. E21 =: EP 1 793 512 A2 is the only piece of prior art used in opposition.
E21 teaches creating the communication priority matrix by adopting the criteria of
(i) the number of available access points,
(ii) a detected signal strength and
(iii) how many clients are associated with each access point.
In contrast to the OD’s positive assessment in the decision under appeal, in the board’s view it would have been immediately apparent for the skilled person in the field of communication networks, based on their common general knowledge, to apply one of “available link speed” and “anticipated connection time” as an alternative for criteria (i) to (iii).
For the BA it would have been obvious to arrive at the first one of the two alternatives mentioned in feature (f) by starting from E21 and drawing solely on their common general knowledge.
Due to the fact that an airport schedule will typically include an arrival and a departure time, the skilled person would readily have considered the second alternative of feature (f) as an equally valid option based on the teaching of E21 itself.
The BA concluded that claim 1 as maintained lacks inventive step over E21. The same two reasons applied to AR1.
Regarding claim 1 of AR2, it was immediately apparent for the BA that the central TWLU client of paragraph  of E21 must enable Aircraft/Ground Systems Communication device 70 shown in Figure 3 of E21 to support the type of link established by the access points, otherwise no communication would be possible.
Claim 1 of AR3 is a mere juxtaposition of the features of claim 1 of AR1 and AR2, which cannot lead to the acknowledgement of an inventive step either.
The patent was thus revoked.
OP by ViCo
It is true that compliance of Article 15a RPBA with the EPC has not been questioned by the Enlarged Board of Appeal in case G 1/21, the present board, in considering that OP by ViCo will apply to future OP before the BA, has ignored the reasons brought forward by the EBA in G 1/21.
As the end of the pandemic has not been officially declared at the EPO, it seems thus acceptable to hold OP by ViCo.
However, G 1/21 shows that Art 15a (1) RPBA20 will need a revision following the reasons given in G 1/21.
Otherwise G 1/21 will have been useless.
The discretion offered in G 1/21 should be limited to “emergency situations” or if at least one party requests holding OP in form of a ViCo.
Mixed mode ViCo are perfectly possible. If both parties agree to OP by ViCo, it should be offered by the BA.
Whether the members of the BA can be located at different places according to Art 15a(3) RPBA20 remains to be seen, as there is no legal basis for such an arrangement in the EPC. Simply saying that there is nothing against it in the EPC is not convincing if one sees what is happening in contracting states. Art 125 should apply.
Lack of inventive step
The present decision reminds of T 1370/15 and of T 1090/12 in which the respective BA held that a board is allowed to introduce ex officio common general knowledge without evidence of such knowledge which prejudices maintenance of the patent or may lead to a refusal.
The present board (3.5.03) is a different board than in T 1370/15 (3.5.04), but both are in the computer/telecom area (3.5.03) which used common general knowledge without an once of proof.
In T 1090/12 the board held in an ex-parte procedurethat there is “no general obligation on a board to provide documentary evidence for the existence of a piece of common general knowledge”.
In T 1370/05 and T 1090/12 the boards refused to refer a corresponding question to the EBA.
This development in the computer/telecom area is thus rather worrying and it is to be hoped that this type of behaviour will not spread to other technical areas.
At least the matter should be referred to the EBA as it appears to be an important problem of law, whether the BA like it or not.
The RPBA have given the BA a great deal of discretion. The discretion of the boards should however have limits. In those three cases the limits of the discretion granted to the BA have clearly been exceeded.
Can you imagine a BA accepting that a division of first instance or a party mentions common general knowledge without providing any evidence? I do not.
Why should the BA be allowed to do what they would not tolerate from others?