This invention relates to tap changers and more particularly to load tap changers in electric transformers.
Brief outline of the case
The opposition was rejected and the opponent appealed this decision.
The opponent considered that the OD committed a SPV. This was refuted by the board.
The board decided that claim 1 as granted lacked IS.
All AR were either not admitted (AR1-6) or irrespective of the admissibility lacking IS (AR7).
The patent was thus revoked.
The case is interesting in that it deals with the complaint of the opponent about a SPV allegedly committed by the OD.
The opponent’s point of view
The reimbursement of the appeal fee was justified because the opposition division had not demonstrably heard essential points of the reasoning concerning inventive step, because they had discussed neither decision T 0967/97 (first complaint) nor the cited passages from the Guidelines for Examination G-VII, Annexes concerning examples of obvious subject-matter (second complaint).
The board’s decision
The first complaint is that the OD did not address the decision T 0967/97 cited by the opponent in order to support the argument that their inventive step objection starting from document D3 as starting point should be considered.
For the board, it was not necessary for the OD to address this particular argument since the OD explained in the first paragraph on page 8 of the impugned decision that even when starting from document D3 they did not find the then opponent’s argument convincing.
The opposition division needed to address only those arguments that are relevant for the final decision. This was done here implicitly by also examining document D3 as starting point.
The appellant’s second complaint is that the opposition division did not address the passages of the Guidelines G-VII, Annexes 1.1 and 3.1 in the impugned decision.
The above Guidelines passages only establish principles that are normally to be applied when examining inventive step. They can neither replace the case-dependent exercise of judgement of an OD nor prescribe which conclusion is to be reached. It is apparent that the OD in the present case was not convinced that the particular circumstances of the above Guidelines passages applied to the case at hand. This is apparent from the reasons in point II, 6.1 of the decision under appeal, in which the opposition division considers that D13 does not disclose a part of specific feature.
In Point 6.3, especially page 8 of the decision, the OD justified why it did not consider the IS attack based on D3+D13 as convincing. Any further consideration was thus unnecessary.
T 0967/97 is a rather general decision and one could consider that the opponent has not shown how this decision was applicable in the present instance.
Citing the Guidelines is rarely perceived positively by divisions of first instance. They are aware of them. It is only when a division blatantly ignores them that a reminder can be useful.
In its statement of grounds of appeal, the opponent also argued that “from the decision it appears that the OD has not demonstrably heard an considered essential points of our arguments. This amounts to a violation of our right to be heard.”
The opponent is clearly mistaken, as the OD has the full right to appreciate the arguments brought forward by the opponent in a different manner. As the OD explained why it came to this conclusion, the right to be heard has been respected. That the board infirmed the position of the OD does not change this fact.
A different opinion, properly justified, even for the wrong reasons, between a division and a party is not to be equated with a procedural violation, let alone a substantial one. Otherwise, there would be SPVs all the time.