T 0189/06 12-10-2010

1. The appeal is admissible.

Main request

2. The board considers that claim 1 according to the main request does not meet the requirements of Article 84 EPC 1973 for each of the following reasons:

(a) The expressions "instant review" and "substantially immediately after" do not have a clear technical meaning in the context of claim 1. Each of these expressions implies a (very) short delay between two successive actions. However, the duration of the delay remains vague even when account is taken of the other features of the claimed method. The skilled person is therefore left in doubt as to how short the delay is and to what extent it distinguishes the claimed method from prior-art methods in which an image is displayed for review shortly after it has been captured. It must be understood that the duration of such delays in image capture devices can vary greatly, from very short to rather long, depending on many factors such as the size of the image, the size of the display, the processing speed of the image processor, the access time of the memory, the type of processing performed on the image (e.g. compression or not) and the algorithm used.

(b) The expression "wherein the image capture device is capable of accessing the last image before processing of the image is complete" defines the result to be achieved without indicating by which combination of technical features this result is achieved. This, however, is not acceptable according to the established case law (see section II.B.1.2.2 of Case Law of the Boards of Appeal of the EPO, 6th edition 2010). Moreover, at least some of the essential technical features are missing in claim 1. In particular, a step of generating a lower-resolution image of, or corresponding to, the captured high-resolution image before completing the processing of the high-resolution image is essential because the application discloses no alternative way of achieving the above result and the board does not see one which would have been obvious to the skilled person from common general knowledge. However, the indication of all essential features is one of the requirements of clarity (see section II.B.1.1.4 of Case Law of the Boards of Appeal of the EPO, 6th edition 2010).

3. The appellant's arguments

As to reason (a) supra, the appellant argued that the expressions "instant review" and "substantially immediately after" are clear because they should be construed from the point of view of a person using the method and apparatus of the invention, who has pressed the image capture button and is waiting to be shown the captured image on the viewfinder.

The board is not convinced by this argument because the skilled person would understand that even from the point of view of such a human user these expressions have a relative meaning which may vary from one user to the next. For instance, one user might consider that the expressions "instant review" and "substantially immediately after" cover a one-second delay between capture and display of an image, whereas another user will regard such a delay as too long to be covered by these expressions.

As to reason (b) supra, the appellant argued that the expression objected to by the board is clear as it is and that generating a lower-resolution image of the captured high-resolution image before completing the processing of the high-resolution image is not essential because the same result could be achieved in other ways.

The board cannot share the appellant's view because the application does not disclose any alternative way of "accessing the last image before processing of the image is complete" to a step of generating two different versions of the last image captured, one at a lower resolution which is rapidly provided to the viewfinder before completing the processing of the high-resolution image and one at high resolution (the resolution set by the user; see e.g. page 10, lines 6 to 9 of the published application) which is stored for later usage. The appellant has not proposed any alternative way of achieving the above result, and the board does not see one which would have been obvious to the skilled person from common general knowledge. The phrase objected to is therefore a functional feature defining a technical result of a type not permissible under the established case law (see section II.B.1.2.2 of Case Law of the Boards of Appeal of the EPO, 6th edition 2010).

4. For the above reasons, the appellant's main request is not allowable.

First auxiliary request

5. Claim 1 according to the first auxiliary request does not meet the requirements of Article 84 EPC 1973 for the following reasons:

(a) The use of the expressions "instant review" and "substantially immediately after" in claim 1 causes a lack of clarity for the reasons set out under point 2(a) supra. The fact that step (b) has been further defined by steps (b1), (b2) and (b2i) and that step (c) has been further defined by steps (c1), (c2) and (c2i) does not change this conclusion because these additional steps do not clearly constrain the values that the very short delay implied in the relative expressions "instant review" and "substantially immediately after" may take.

(b) Claim 1 uses the terms "the last image" and "the image" to refer sometimes indiscriminately to different occurrences of the most recent captured image of a scene, namely to refer to the image as such in any form (see in particular feature (a)), in the form of the last image data stored in the buffer (with an unspecified resolution; see in particular feature (c1)) and in the form of its different (medium) resolution version in a resized form, i.e. the screennail image (see steps (b2i) and (c2)). The method of claim 1 comprises a step allowing a user to select a last image as such (in any form; feature (a)), a determining step for determining in which form (as stored in the buffer or its screennail version) this image is available (feature (b)) and a providing step (feature (c)) which provides the buffer image version (if available) to the viewfinder (feature (c1)) and (emphasis by the board) which provides the retrieved and resized screennail version to the viewfinder if it has been generated (feature (c2)) and otherwise creates the screennail version (if it has not been generated; feature (c2i)).

The last feature of claim 1, starting with "wherein if the location" refers to features of the image capture device where the "last image is accessible for display or annotation" and which capture device is "capable of displaying the last image substantially immediately after the last image has been captured". This last feature is worded such as to define the result obtained by carrying out the determining and providing steps (b) and (c), namely the last image as such (in any form) is accessible for substantially immediate display. The determining step (b) gives priority to the buffer image in that it first determines the presence of the image in the buffer before it checks the status of the last image and whether a corresponding screennail image has been generated (feature (b2)). The providing step (c) then provides the buffer image to the viewfinder and provides the (retrieved, resized) screennail image to the viewfinder. If the last image is not stored in the buffer, an available screennail image (feature (c2)), or one which has to be created (feature (c2i)), would be provided to the viewfinder. But the screennail image would also be retrieved (if determined as generated or after creating it) and resized if the last image is stored in the buffer, thereby including the possibility of providing both versions of the last image to the viewfinder. The last feature of claim 1 does not help to clarify how the determining step (b) (determining a status and location) and the providing step (c) are interrelated since this last feature merely specifies that the last image is accessible for display or annotation and that the capture device is capable of displaying the last image substantially immediately after it has been captured. Therefore, this feature does not clarify how the determining step influences the providing step. Although it may be understood from the determining step that checking the status of the last image is carried out only if the last image is not stored in the buffer (feature (b2); as shown in figure 9), the providing step does not refer to the checking step or the determining step, in which the checking step is included, but refers to providing the screennail image to the viewfinder if it has been generated, whether or not this is the result of the determining step (b2i).

6. As a consequence, the first auxiliary request is not allowable.

Second auxiliary request

7. Claim 1 according to the second auxiliary request differs from claim 1 of the main request only by the additional feature that "annotating the image includes adding sound to the image". The objections under Article 84 EPC 1973 raised against claim 1 of the main request therefore also apply to claim 1 of the second auxiliary request.

8. Hence the second auxiliary request is not allowable.

Third auxiliary request

9. Claim 1 according to the third request differs from claim 1 according to the main request essentially in that the image capture device includes an input buffer for storing raw data and a frame buffer for storing an image for display on the viewfinder, and in that step (b) includes a step (b1) of determining if the last image is stored in the frame buffer.

10. Claim 1 according to the third auxiliary request does not meet the requirements of Article 84 EPC 1973 for the following reasons:

(a) The use of the expressions "instant review" and "substantially immediately after" in claim 1 causes a lack of clarity for the reasons set out under points 2(a) and 5(a) supra. The presence of a frame buffer in addition to the input buffer and step (b1) do not clarify the relative meaning of the above expressions because these features, as they are worded, do not necessarily imply different resolution versions of the last captured image (see point 2(b) above). Nor do these features imply that the frame buffer stores the last image in a version that has already been processed in a live view generation version and can thus quickly be accessed (see e.g. page 10, lines 12 to 19, of the application).

(b) The phrase "wherein [...] the image capture device is capable of accessing the last image when the status of the image is that processing of the image is incomplete" defines the result to be achieved without indicating by which technical features this result is achieved, for the reasons set out under point 2(b) supra.

11. Accordingly, the third auxiliary request is not allowable.

Fourth auxiliary request

12. Claim 1 according to the fourth auxiliary request differs from claim 1 according to the third request only by the additional feature that "annotating the image includes adding sound to the image". The objections under Article 84 EPC 1973 raised against claim 1 of the third request therefore also apply to claim 1 of the fourth auxiliary request.

13. Hence the fourth auxiliary request is not allowable.

Fifth auxiliary request

14. Claim 1 of this request leaves unclear how the determining step (b) is interrelated with the providing step (c) and the remaining features because the status and location of the last image which are determined in step (b) are not mentioned in the remaining steps of the method of claim 1. It is thus unclear in which form the last image is provided to the viewfinder and what the role of the input buffer or RAM disk is in completing the processing of the last captured image.

14.1 The remaining steps in the last two paragraphs of claim 1 merely set out a priority of processing the lower-resolution image before its high-resolution "copy". This priority of processing is required to be such that the device is capable of displaying for review the last image substantially immediately after the lower-resolution image has been captured and before processing of the image is complete. But claim 1 does not specify how the last image is accessed and provided to the viewfinder for display depending on the status and location of the last image. Nor does it specify the essential features for achieving a rapid or substantially immediate review of the last image.

14.2 The description refers to status and locations, such as a determination whether image processing is complete or whether the last image is in a frame buffer (536, as distinct from an input buffer 538 which receives the raw data). Depending on the determined result, the last image is processed for display in a different manner (see for example page 10, lines 12 to 19; page 13, lines 1 to 25; page 15, lines 1 to 16; figures 4B, 7 and 9). None of the essential features relating to a particular status and location is set out in claim 1.

14.3 Contrary to the appellant's assertion (see the letter of 13 September 2010, page 3) that claim 1 "include[s] the technical step of generating a lower-resolution image of the captured high-resolution image before completing the processing of the high-resolution image", the board does not see such a definition in claim 1. The claim states that "the last image has been captured as a lower resolution image" (emphasis by the board) and that "a lower resolution image of the last captured image" is processed "before completing the processing of the high-resolution copy of the last captured image" (emphasis by the board). Although the meaning of the term "copy" may be questioned because it is not used anywhere in the description, the board understands these expressions to mean that different resolution versions of the last image exist, the processing of the lower-resolution version being completed before that of the high-resolution version. Neither the literal meaning of the expression "captured as a lower resolution image" nor the corresponding parts of the description it invokes can be understood as generating a lower-resolution version of the captured high-resolution image. Instead the description discloses that raw image data at a reduced resolution suitable for display are sequentially captured in a live mode (page 9, line 27 to page 10, line 1). The raw image data which had already been processed before capturing the image is stored in the frame buffer 536. Once the user has captured an image, the raw data of an image corresponding to a higher-resolution version (set by the user) is stored in the input buffer 538 and used to generate an enhanced image file (see page 10, lines 1 to 19).

14.4 It is clear from the foregoing that the further amendments proposed by the appellant in the letter dated 13 September 2010, namely the deletion of the expression "substantially immediately after" and the addition of the words "before completion of the processing of the high resolution image" do not clarify the relationship of the determining and providing steps of claim 1 and their effect in the context of claim 1 has already been discussed in the above analysis (see point 14.1).

15. For the above reasons, the fifth auxiliary request is not allowable.

Procedural matters

Request that the oral proceedings be held as close as possible to 1.00 pm

16. The request to start the oral proceedings as close as possible to 1.00 pm could not be granted for the following reasons:

Scheduling oral proceedings to start at 1.00 pm can only be accepted in certain exceptional cases. In general this creates a risk that the oral proceedings are not finished at a reasonable time and thus have to be adjourned. In the present case five sets of claims (main request and four auxiliary requests) were submitted with the grounds of appeal and five prior-art documents (D1 to D5) might have had to be discussed during the oral proceedings. The present case thus appeared inappropriate for making an exception.

The oral proceedings therefore started at the usual time of 9.00 am.

The appellant's offer to discuss outstanding points on the telephone

17. As announced in advance, the duly summoned appellant did not attend the oral proceedings. According to Rule 71(2) EPC 1973, the proceedings could however continue without him. In accordance with Article 15(3) RPBA (Rules of Procedure of the Boards of Appeal of the European Patent Office, OJ EPO 2007, 536), the board relied for its decision only on the appellant's written submissions. The board was in a position to decide at the conclusion of the oral proceedings, since the case was ready for decision (Article 15(5) and (6) RPBA), and the voluntary absence of the appellant was not a reason for delaying a decision (Article 15(3) RPBA).

18. Nor was the fact that in the letter dated 4 October 2010 the appellant had indicated his readiness to discuss any points with the board on the telephone a reason for the board to delay its decision. According to established case law, the EPC foresees the absolute right to oral proceedings under Article 116(1) EPC 1973, but not the right to an informal interview or an informal telephone consultation (Section VII.B.2.7.2 of the Case Law of the Boards of Appeal of the EPO, 6th edition, 2010). Hence the board was not required to contact the appellant by holding a telephone interview, for instance with the rapporteur.