EP 3 543 928 A1 relates to a method for opening a door vehicle, more precisely to the localization of objects in the hold of a transport vehicle, the loading space being accessible via a plurality of doors.
The position of an object determined during loading is tracked by means of optical position detection, so that changes in position (e.g. due to slippage) are known and the most effective door for accessing the object is indicated during delivery.
Brief outline of the case
The application was refused for lack of sufficiency and the applicant appealed.
The board remitted the case to the ED for further prosecution as the subject-matter of AR1-3 was considered sufficiently disclosed.
The case is interesting as it deals with the sufficiency of broad claims.
The ED’s objections of lack of sufficiency
The ED questioned the sufficiency of the claimed teaching due to the problem of an obscured field of vision for optical positioning. This is because in order to ensure continuous tracking of the position of an object in the hold, it must be visually recognizable at all times. This is particularly not the case if, in the case of multi-layered loading with objects other than those in the top layer. Those can no longer be reliably “tracked” optically.
In addition, the ED also raised this objection in the event that objects are only arranged next to each other, i.e. form only one layer, because even in this case large objects could obscure the view of the optical position determination of small objects.
In both cases, which are covered by the wording of claim 1, tracking the position of an object in the hold and thus the purpose of the claimed teaching would not be reliably achieved.
The applicant’s point of view
The applicant argued that claim 1 also covers the special case where exactly one object is transported. The problem of an obscured field of view for determining the optical position could not arise at all and the teaching could therefore be implemented in any case.
The applicant further argued that the problem of obscured vision is no more than a measurement inaccuracy.
The board’s decision on sufficiency
Main request
The board argued that it might be true that with one object sufficiency is achieved, but this is not the case in the breadth of claim 1.
As far as the case of a multi-layered arrangement of objects is concerned, the board agreed with the contested decision that not all objects can be reliably located optically. This applies irrespective of the spatial arrangement of a camera or a laser scanner in the hold. Thus, the intended purpose is not reliably achieved with the claimed means. Even trial and error by the skilled person cannot change this finding.
For the board, there is more than a measurement inaccuracy, as no measurement can be carried out at all when the field of view is obscured. For the board, his is not comparable to a measurement inaccuracy.
No specific image processing algorithm is disclosed in the application. Thus, considerations as to what leads to problems for the image processing algorithm and what does not cannot contribute to solving the problem discussed above. This cannot be changed by hearing the inventor as a witness, as this cannot replace the disclosure.
A one-time determination of the position of an object during loading and the use of this value to determine which door of the loading compartment is to be is not covered by the wording of the claim because the step of tracking the position is missing.
The situation is different in the event that a concealed object slips back into the field of vision, because the step of tracking the position then takes place. It was also not clear how the optical positioning device could be used to determine the weight of an object.
The board concluded that the subject-matter of the MR was insufficiently disclosed.
Auxiliary requests
A claim generally attempts to define a device under ideal conditions. If the skilled person can deduce what works and what does not, taking into account the disclosure and common general knowledge, a claimed invention is sufficiently disclosed, even if a broad interpretation might include subject matter that does not work.
In the present case, the skilled person is in a position to directly recognize and exclude situations which manifestly do not achieve the desired effect, for example, due to obscured vision, and to respond by an adapted position determining device. The board had no doubt that the skilled person would adapt the functional feature of an optical positioning device to the size ratios of the objects to be transported.
The board concluded that the subject-matter of the AR was sufficiently disclosed.
Comments
As the effect, localisation of an object in the hold of a delivery vehicle with a plurality of doors, the objection was indeed an objection of lack of sufficiency. See for instance T 2001/12, Catchword.
An incorrect interpretation of the claims cannot be used for disputing sufficiency of the disclosure and hypothetical embodiments are also not encompassed by claims.
There is a long list of case law illustrating this position, see for instance T 2166/17 or T 875/11.
Conversely, the sufficiency of a broad claim cannot be given, if only some specific embodiments are sufficiently disclosed. This is was the applicant tried here for the MR. Sufficiency is to be appreciated at the priority resp. filing date and should be insured over the breadth of a claim.
It is the first time that I see the inventor to be called as a witness in order to testify that sufficiency is given. Besides the fact that the sufficiency is appreciated on the basis of the original disclosure, it is doubtful that the inventor would acknowledge that there is a lack of sufficiency.
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