Zusammenfassung von EPC2000 Art 083 für die Entscheidung T0748/19 vom 15.12.2023

In ex parte case T 748/19 the application related to identifying events in scenes under surveillance. The board remarked in its preliminary opinion that claim 1 defined a method for identifying events without any definition of the events which were classified. Hence it covered in principle any event in video surveillance. It did not appear credible to the board that the types of data claimed, separately or in combination, contained the information needed to distinguish between all types of events. The application also remained very generic as to the implementation of the proposed concept, providing no detailed examples, and no results. Thus the application was limited to presenting a concept, the validity of which was already questionable for theoretical reasons, and which was also not established by any evidence. The application did not contain even a single detailed embodiment. The appellant argued that it was true that the claim was based on a limited number of experiments, and that the claim scope included cases which were not covered by these experiments. But the examples were sufficient, because they illustrated how the invention was to be implemented in general and determined the expectations of the skilled person. Implementation using a neural network, i.e. choosing a suitable architecture and training the network, was straightforward for the skilled person. If a parameter (a camera processing data type) was not useful for the scene and events considered, it would not be used in real life, because the training would not converge. The temporary identification process claimed provided scene-specific ground truth, so it reduced the claimed scope and training requirements. Moreover, the skilled person would have an understanding of which parameters were affected by which of the considered events. In its view, the board in its preliminary opinion had an incorrect understanding of what the skilled person in the art would expect. The board agreed that the skilled person would be able to choose an architecture for a neural network and carry out its training if a set of camera parameters and events to be identified were defined. However, this was insufficient to establish compliance with Art. 83 EPC in the present case. That was because the claimed invention was not characterised only by it being a neural network, but also, perhaps primarily, by its purpose, that of being able to (reliably) identify events. This purpose must be achieved in different scenarios, also corresponding to different sets of events. The board explained that it was for the applicant who drafts the claims to define the protection it was seeking. If it was clear that the claim intentionally covered certain matter, then this matter was part of the claimed invention and the fact that it could not be carried out could not be ignored (sufficiency of disclosure). Therefore, the board disagreed with the idea that the claims had to, a priori, be construed to exclude instances which the skilled person would "not expect to work", or which only after trial and error turned out not to work. The board agreed that it may sometimes be the case that "technically unreasonable" instances of the claimed subject-matter should not be detrimental to sufficiency under Art. 83 EPC. When the "technically unreasonable" instance was a contrived one, i.e. one which the skilled person would, in view of the provided teaching and of the claimed generalisation, not consider the claim to cover, this instance should not be covered. However, non-contrived instances where it was clear that the claim intended to cover them, should be taken into account for assessing sufficiency of disclosure (even if "technically unreasonable" - a claim to a teleporting machine). The board concluded that on the facts the requirements of Art. 83 EPC were not met. As to related case law, T 814/20 (video surveillance) was different. The board was also aware of discussions in recent decisions and agreed with T 149/21 that there was no basis in the EPC for applying different standards for compliance with Art. 83 EPC depending on the technical field. The board considered also T 1983/19.