T 0510/06 04-03-2008

1. The appeal complies with the requirements of Articles 106 to 108 and Rule 64 EPC 1973 and is, therefore, allowable.

2. Main request - Sufficiency of disclosure

2.1 Pursuant to Article 83 EPC 1973 an invention must be disclosed in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art. According to the case law of the boards of appeal these requirements are in principle met if at least one way is clearly indicated enabling the person skilled in the art to carry out the invention (cf. T 292/85, OJ EPO 1989, 275).

As a consequence of the amendments made to the claims, all embodiments which were originally disclosed in the application in relation with Figures 3-7, have been excluded from the definition of the invention as it results from the wording of claim 1 of the main request. In particular, the meander patterns separating two polygons in the antennas according to Figures 3-7 do not correspond to a Space-Filling Curve as specified in claim 1 of the main request. Moreover, Figures 1 and 2 relate to prior art geometries illustrating multilevel antennas and do not, as such, constitute examples of the claimed antenna.

Rule 27(1)(e) EPC 1973 only requires the inclusion of examples in the description "where appropriate". The question to be answered is therefore whether the inclusion of examples would have been appropriate in the present case, i.e. whether the skilled person would have been able to identify in the sole disclosure, possibly supplemented by his common general knowledge, at least one way enabling him to reproduce the claimed invention.

2.2 Claim 1 according to the main request, although drafted in terms of technical features, includes a definition as to the geometry of the antenna which is essentially of an abstract nature without bearing on the actual physical entities constituting it. This view is corroborated by the examples of Figure 1. Although referring to prior art geometries, the drawings 1-4 in Figure 1 disclose multilevel antenna structures in the sense of the present application (cf. page 2, lines 30, 31). The mere visualisation of the drawings does not, however, permit to immediately recognize polygons as defined in claim 1, i.e. as required in a multilevel structure.

It follows that one difficulty that the skilled person would encounter when trying to carry out the invention resides in apprehending geometries fulfilling the requirements set out in claim 1 of the main request.

This difficulty will be illustrated more specifically in the following sections in relation with the step consisting in identifying, in predetermined geometries, the distribution of polygons which could fulfil the conditions set out in claim 1. Such an identification is the result of mental processes of a cognitive and conceptual nature taking place in the human mind which is directly influenced by a multiplicity of parameters. In particular, the category of polygons, their number, size and possible distribution within the candidate structure render this exercise quite complex. This will be particularly apparent from a discussion of the examples of multilevel structures disclosed in Figure 1.

2.2.1 Insofar as the configurations corresponding to drawings 1, 2 and 4 in Figure 1 are concerned, the description does not contain any indication which would permit to verify the adequacy of the definition of a multilevel structure. In fact, the identification process consists essentially in trial and error until a configuration is obtained for which the definition would apply.

2.2.2 Figure 2 provides additional information regarding drawing 3 of Figure 1. It shows a specific distribution of polygons illustrating the validity of the definition as to the multilevel structure for this shape of antenna.

It is worth mentioning that a slightly different repartition of polygons, within the structure of Figure 2, would not permit to meet the conditions defined in claim 1 of the main request without changing the geometry of the antenna. For example, the geometry corresponding to item 3 in Figures 1 and 2 could also be considered to result from the juxtaposition of rectangles 102, 104, 106 and 106, with these rectangles extending over the complete width of the antenna like rectangle 101, and with three additional rectangles 103, 105 and 107 extending therebetween. This configuration would then imply that 3 rectangles out of a total of 8 would have a ohmic contact region larger than 50% of their perimeter, contrary to the definition of a multilevel structure.

2.2.3 It is further observed that the distribution of polygons which satisfies the conditions of a multilevel structure is not even unique for a predetermined geometry and a predetermined type of polygons. Moreover, it also depends on the nature of the polygons considered, i.e. whether the polygons are rectangles, pentagons, etc.

2.2.4 It should finally be emphasized that the process of reproducing the claimed invention differs from the mere identification process referred to above in relation to specific known geometries in that the shape of the final product, i.e. the multilevel structure incorporating a gap shaped as a Space-Filling Curve, has first to be determined. This requires from the skilled person a further level of abstraction when trying to conceive a geometry corresponding to the claimed wording thus rendering his task even more complicated.

2.3 In the absence of examples, a first consequence of the lack of direct correspondence between the features relied on when defining the final product and structural elements of the antenna is that such information, at least insofar as it refers to the geometry of the multilevel structure, is not exploitable by the skilled person in order to carry out the claimed invention. In other terms, the abstract concepts referred to when defining the multiband antenna do not permit to conceive, in the absence of any additional adequate information, any tangible structure corresponding to the present wording.

On the contrary, with regard to the definition of the multilevel structure contained in claim 1 of the main request, the Board observes that this wording would even be misleading if used as a guideline when trying to carry out the invention. The skilled person who would equate the various elements referred to in claim 1 with concrete structural elements of the final product and would consequently conceive a structure resulting from the juxtaposition of polygons with the same number of sides in such a way that the ohmic contact region between ohmicly connected polygons is narrower than 50% of the perimeter of said polygons in at least 75% of said polygons would hardly obtain an antenna with the required response characteristics as regards the expected multiple bands location and bandwidths.

2.4 The Board cannot identify in the disclosure any concrete teaching which could compensate for this lack of concrete definition, thus providing the necessary information to carry out the invention.

2.4.1 Furthermore, as stressed above, the more detailed discussion of Figure 2, which permits to verify the adequacy of the disclosed geometry with the definition of a multilevel structure, is not sufficient when trying to conceive a similar structure incorporating a gap shaped as a Space-Filling Curve. In particular, the identification of the rectangles in Figure 2 does not help, in this respect. Moreover, the presence of a gap shaped as a curve composed of a plurality of segments in the configuration of Figure 2 would even seem to be in conflict with the requirement that all polygons should have the same number of sides.

Even if the embodiments of Figures 3-7 do not fall any more under the definition of the antenna according to claim 1 of the main request since the gaps disclosed therein do not correspond to a Space-Filling Curve, they nevertheless provide additional information as to the arrangement of gaps within the structure which could be taken into account by the skilled person.

However, the information gained from these embodiments leads to some confusion, since the two polygons 102 and 104 separated by the gap are equated in the description with "rectangles" of a multilevel structure having the same number of sides, although these elements feature, respectively, 16 and 14 sides.

2.4.2 The appellant points out, in this respect, that the apparently contradicting findings relating to Figures 3-7 merely reflect the fact that the definitions of the polygons and gap would refer to two different scales.

The Board does not accept this view and observes that claim 1 of the main request does not contain any indication in that direction.

Moreover, this line of argumentation is inconsistent with the passage in the description, page 2, lines 26-28, which specifies: "In this definition of multilevel structures, circles and ellipses are included as well, since they can be understood as polygons with a very large (ideally infinite) number of sides". This statement implies, namely, that an infinitely short straight portion would also correspond to a side in the sense of the present application, thereby contradicting the position defended by the appellant.

2.5 According to an alternative line of argumentation, the appellant stressed that it would generally not be a problem for the skilled person to devise a multiband antenna of a multilevel structure as defined in claim 1 of the main request, since the examining division was well able to identify, with regard to a gap comprising less than ten segments, a similar structure. In this respect, the appellant referred to a Figure submitted by the Examining Division during the oral proceedings held on 13 January 2006 in order to substantiate its analysis of Figure 8f in document D1 (cf. minutes of the oral proceedings before the examining division held on 13 January 2006, Annex 5).

The Board cannot concur with the appellant that this finding could compensate for the insufficiency of the disclosure. The intellectual exercise consisting in comparing the prior art with the wording of a claim in order to decide on patentability requirements such as novelty and inventive step fundamentally differs from the process consisting in elaborating a specific structure embodying the claimed subject-matter. While the former process could be compared with the process consisting in checking whether a key fits a specific lock, the latter would correspond to the realisation of that particular key actually able to fit the lock.

Both approaches might be straightforward in situations where claims recite technical features indeed corresponding to structural limitations of the claimed subject-matter: the recited combination of features would then directly provide a template to be referred to for comparing or reproducing purposes. The situation is quite different where the degree of abstraction relied on when defining the claimed subject-matter is such that it cannot be directly exploited by the skilled person in order to carry out the invention.

It should further be emphasized that the skilled person can only rely, when trying to clarify or complete the teaching provided in a patent application, on his general knowledge and not on specific documents which do not, as such, define said knowledge. The appellant, however, failed to provide evidence that the missing teaching would be part of this common knowledge. Under the present circumstances, this knowledge concerns more specifically the existence of geometries including a plurality of polygons featuring the same number of sides wherein at least two of said polygons would be separated by a gap shaped as a Space-Filling Curve which would permit simultaneous reception of signals within a plurality of predetermined frequency bands.

2.6 In conclusion, the skilled person would not find in the disclosure any clear teaching which could have compensated for the absence of examples. There was also no evidence produced that, according to common knowledge, the geometry defined in claim 1 would apply to known structures. As a consequence, the claimed invention could be carried out if at al, by mere trial and error which, in view of the large number of parameters influencing the behaviour of an antenna, amounts to an undue burden (cf. T 32/85, point 5 of the decision).

3. Auxiliary requests I to VII - Sufficiency of disclosure

3.1 Claim 1 according to auxiliary request I differs from claim 1 according to the main request in that the feature "at least two of said polygons being separated by a non-conducting gap in said conducting surface" has been replaced by the feature "two of said polygons being separated by a gap in said conducting surface". This amendment does not, however, affect the analysis made above.

In particular, given that the objection under Article 83 EPC 1973 is based on the geometry of the antenna, it is not affected by the non-conductivity of the gap (which is anyway implicit). The reference in claim 1 of auxiliary request I to "two of said polygons" instead of "at least two of said polygons" restricts the wording of the claim to one of the configurations encompassed by the wording of claim 1 of the main request. However, since the objection raised above with regard to the main request relates to the fact that the disclosure does not provide one single complete way of carrying out the invention when encompassing a large variety of configurations, it also applies to a version of the claim limited to one of these possibilities.

3.2 Independent claims 1 according to auxiliary requests II and III differ from claim 1 of auxiliary request I in that the claims recite further limitations as to the ground plane. These limitations do not affect the definition of the radiating portion of the antenna. In particular, the geometry of the radiating portion of the multiband monopole antenna according to the claims 1 of auxiliary requests II and III is identical to the geometry recited in claim 1 of auxiliary request I. Therefore it does not satisfy the requirements of Article 83 EPC 1973 for the reasons developed above.

3.3 The same finding applies to the claims 1 according to auxiliary requests IV to VII, which correspond to the claims 1 of the main request and auxiliary requests I to III, respectively.

4. Auxiliary requests VIII and IX - Admissibility; Sufficiency of disclosure

4.1 The claims 1 according to auxiliary requests VIII and IX differ from the claims 1 of auxiliary requests II and III, respectively, in that the term "monopole" has been deleted in the expression "multiband monopole antenna" in both the apparatus and method claims.

4.2 Although filed during the oral proceedings, the Board admitted these late-filed requests in the appeal proceedings, taking into account that the amendment was straightforward, addressed some of the issues raised by the Board under Article 123(2) EPC with regard to requests filed by the appellant with letter dated 25 January 2008, and did not require adjournment of the oral proceedings under Article 13 RPBA (OJ EPO 2007, 536).

4.3 The amendments carried out in relation with the claims 1 of auxiliary requests VIII and IX do not affect the geometry of the radiating portion of the multiband antenna as claimed in claim 1 of auxiliary request I. As a consequence, said requests do not meet the requirements of Article 83 EPC for the reasons mentioned above.

5. In consequence, none of the requests filed by the appellant has been found allowable.