T 0624/06 29-05-2008

1. The appeals are admissible.

2. Remittal:

When a new document is filed during the opposition appeal proceedings, the question arises whether the case is to be remitted to the department of first instance.

In the present case D11 was not taken into consideration by the Opposition Division, because it was regarded as late filed. However, this citation discloses a "totally hidden" built-in dishwasher mentioned as prior art in the introductory part of the patent specification. This document therefore illustrates the prior art acknowledged in the patent specification. Consequently, it was not necessary to remit the case to the department of first instance, so that this document could be examined at two levels of jurisdiction.

Although remittal was requested by Appellant I, Article 111(1) EPC 1973 establishes no absolute right for the parties to have all matters raised in appeal proceedings examined by two successive instances; on the contrary it leaves to the Board of Appeal to decide, in the light of the circumstances of the case, whether or not to remit it to the department of first instance, see e.g. T 133/87, point 2 of the reasons.

For these reasons, the Board in exercising its discretion under Article 111(1) EPC 1973 decided not to remit the case to the department of first instance for further prosecution.

3. Inventive step - main request:

3.1 D11 is the closest prior art, since it relates like the claimed invention to a built-in dishwashing machine of the "totally hidden type". This dishwasher comprises a cabinet housing a spraying arm of the machine and a frontal door, where on an edge of the door three luminous signalling devices (top of page 82) are provided, in particular spy-lights, indicating a determined operational condition of the dishwashing machine, such as "SALT", "ON", "END", the luminous signalling devices are, when the door is closed, hidden and protected by a surface extending substantially parallel to the edge of the door in which said luminous signalling devices are provided.

The luminous indication "END" is indicative of a point reached of a determined operative phase from among those provided in the range of an operative cycle of the dishwashing machine.

3.2 The dishwasher according to claim 1 differs from that known from D11 in that:

one or more elements are provided for transferring the light emitted from one or more luminous signalling device towards the front of the door, so as to allow the control of the operational condition of the dishwashing machine indicated by the luminous signalling device without having to open the door.

The claimed feature "without ... running the risk that said spraying arm causes a spray of hot water striking the user or adjacent cabinets" is a non-technical, unclear feature and is thus to be disregarded when examining inventive step.

3.3 The problem to be solved by the invention can be seen in making it possible to control the operative conditions of the dishwasher without having to open the door (see patent specification, paragraph [0007]).

This problem is not specific to built-in dishwashers but also occurs with other built-in household appliances of the "hidden" type such as refrigerators. Consequently, in the present case the skilled person would not only look for suggestions in the specific technical field of built-in dishwashers but also in the broader technical field of built-in household appliances.

3.4 The Respondent considered that identifying the above mentioned problem would already imply an inventive activity.

This cannot be accepted, since the problem the invention seeks to solve was already known from D2 which relates to refrigerators comprising a control panel which is hidden when the door is closed. Reference is made to page 3, lines 3 to 10 of D2 where it is stated that in order to control the luminous signals without having to open the door it was known to provide light conducting elements for transferring the light emitted by the luminous signals towards the front of the door.

3.5 D2 teaches to provide light transmitting elements which are bent around the door so that the luminous signals are visible in the interstice between the door and the surface extending parallel to the edge of the door (page 3, third paragraph; Figure 4).

Accordingly, it would have been obvious for a skilled person to apply the teaching of D2 to a dishwasher according to D11 in order to control the operative conditions of the machine without having to open the door.

3.6 The Respondent contended that a skilled person would have not considered the technical field of built-in refrigerators.

However, a skilled person would, as well as considering the state of the art in the specific technical field of the invention, look for suggestions in the neighbouring field of built-in refrigerators because the same or similar problems as in the field of built-in dishwashers play a role and also because the skilled person in the field of built-in dishwashers can be expected to know the field of built-in refrigerators. Household appliance manufacturers normally offer both built-in dishwashers and refrigerators.

He also argued that there would be no reason for a skilled person to modify a dishwasher according to D11.

However, this dishwasher suffers from the drawback mentioned in the contested patent and therefore it would be normal behaviour for a skilled person to try to alleviate it.

The Respondent further argued that it would be against the design concept of a machine of the "fully hidden" type to put luminous signals on the front of the door.

This cannot be accepted either. D2 does not teach to provide the front of the door with luminous signalling devices, but to provide them in the interstice between the door and the surface parallel to the edge of the door. Thus, the design of the front part of the door would not be modified.

He also argued that in D2 the luminous signalling devices are not located on the edge of the door.

This is correct; nevertheless the claim does not contain the limitation that the light must be on the edge. The teaching of D2 is to be seen in providing light transmitting elements to convey the signal from a place where they are hidden, towards the front of the door, as claimed.

The Respondent further contended that applying the teaching of D2 to a dishwasher according to D11 would not result in a machine according to claim 1 of the main request, because claim 1 requires that the luminous signalling device indicates the operative phase reached from among those provided in the range of the operative cycle of the dishwashing machine. This implies that more than one operative phase is indicated.

This point of view cannot be shared either. Claim 1 requires "at least one luminous signalling device". Thus, only one luminous signalling device can be used, and by providing a luminous signal for the "END" state of the operative cycle of the machine, D11 fulfils the claimed requirement.

3.7 Consequently, the subject-matter of claim 1 of the main request does not imply an inventive step (Article 56 EPC 1973).

4. Inventive step - auxiliary requests:

4.1 First auxiliary request:

In claim 1 of the first auxiliary request instead of indicating the operative phase reached from among those provided in the range of the operative cycle of the dishwashing machine, the luminous signalling device is to indicate an abnormal operational condition of the dishwashing machine such as lack of salt.

The closest prior art document D11 further discloses specific luminous signalling device for indicating a lack of salt. Accordingly, for the same reasons as given for the subject-matter of claim 1 of the main request, the subject-matter of claim 1 of the first auxiliary request does not involve an inventive step.

4.2 Second auxiliary request:

Claim 1 of this request requires that the luminous signalling device indicates the operative phase reached from among those provided in the range of the operative cycle of the dishwashing machine and/or an abnormal operational condition of the dishwashing machine such as lack of salt.

Since, as stated above, none of these two alternatives involves an inventive step, the subject-matter of claim 1 of the second auxiliary request does not involve an inventive step either.

4.3 Third auxiliary request:

Compared to claim 1 of the second auxiliary request, claim 1 of the third auxiliary request additionally requires that the one or more elements are able to optically reflect and/or transmit and/or convey the light emitted. The light transmitting elements of D2 transmit and convey the light emitted by the luminous signalling devices. In applying the teaching of D2 to the dishwasher of D11 to solve the above technical problem, the skilled person would realise that D2 also discloses solving the additional problem of transmitting and conveying the light emitted by the luminous signalling devices and would apply this teaching to the dishwasher of D11.

Accordingly, the skilled person would arrive at the additional feature of claim of the third auxiliary request without exercising inventive skill.

4.4 Fourth auxiliary request:

Claim 1 of this request additionally requires that the one or more elements are located between the edge of the door and the surface parallel to the edge. This is also the case in D2. This additional requirement of the fourth auxiliary request cannot be seen as involving an inventive step.

Claim 1 further requests that the luminous signalling device is provided on the upper edge of the door. This is also known from the closest prior art document D11.

Consequently, the subject-matter of claim 1 of the fourth auxiliary request does not involve an inventive step (Article 56 EPC 1973).

4.5 Fifth auxiliary request:

Claim 1 of this request additionally requires that the one or more elements be able to optically reflect the light emitted by the luminous signalling device and that they comprise systems of mirrors and/or prisms or other polyhedrons, the faces of which are shaped based on the angles apt at transferring the luminous radiation coming from at least one luminous signalling device towards the frontal wall of the door.

That the faces have to be shaped based on angles apt to transmit the light in the right direction, i.e. toward the front of the door is self-evident. The mere use of a mirror system or of prisms or other polyhedrons to reflect a light beam is part of the general knowledge of a skilled person. Moreover, the skilled person would also, as a matter of fact, see from D5 that the problem of reflecting the light emitted by a signalling device would be solved by employing mirrors.

Therefore, the subject-matter of claim 1 of the fifth auxiliary request does not involve an inventive step. Under these circumstances it is superfluous to consider whether this auxiliary request filed during the oral proceedings before the Board is admissible.