T 0278/08 of 04.11.2010

FOR THESE REASONS IT IS DECIDED THAT D25 SHOULD BE ADMITTED INTO THE PROCEEDINGS.

4. Further auxiliary request - Dismissal of appeal: Novelty, claim 1 as granted.

4.1 Regarding the further objections made by the respondent concerning novelty beyond those relating to the prima facie relevance of D25, the board does not accept that the corresponding nozzle length in the device of D25 should be taken from where there is a change of phase and should therefore be inclusive of the bubble generator length. The motive nozzle of D25 is a clearly identifiable component as shown for example in figure 2-7. As explained above in paragraphs 2.2 to 2.4 the claim does not exclude the provision of a bubble generator.

4.2 The ratios L'/D2 and D2/D1 defining the geometry of the ejector in relation to the nozzle are also derivable from D25. In the embodiment described in table 2-2 and figure 2-7 of D25 the pressure-increasing portion has a length of 635mm (see table 2-2 "mixing section and diffusor length") in a refrigerant flow direction and a smallest equivalent diameter of 25.4mm (see "mixing section diameter"), resulting in a value of 25 for the ratio L'/D2, which is smaller than 120. Figure 2-7 shows that an equivalent diameter at the nozzle outlet is 11.43mm which results in a ratio for the smallest equivalent diameter of the pressure-increasing portion to the equivalent diameter at the nozzle outlet of 2.22 (25.4/11.43) which is in a range between 1.05 and 10.

4.3 Taking these remarks into consideration, D25 shows

"An ejector cycle system comprising:

a compressor (see figure 1-2) for sucking and compressing refrigerant;

a radiator ("condenser" see figure 1-2) for cooling refrigerant discharged from the compressor;

an evaporator (see figure 1-2) in which refrigerant is evaporated by absorbing heat;

an ejector (see figure 1-2) having a nozzle ("motive nozzle" in figure 1-3) which decompresses high-pressure side refrigerant from the radiator so that a pressure energy of high-pressure side refrigerant flowing from the radiator is converted to a speed energy so that refrigerant is decompressed and expanded, and a pressure-increasing portion ("Diffuser" see figure 1-3 and 2-2) in which gas refrigerant evaporated in the evaporator is sucked by a high-speed flow of refrigerant so that the pressure of refrigerant is increased while the refrigerant discharged from the nozzle and refrigerant sucked from the evaporator are mixed (see "mixing section" figure 1-3 and 2-2); and

a gas-liquid separator (see figure 1-3 "separator") for storing refrigerant and for separating refrigerant into gas refrigerant and liquid refrigerant, wherein:

the nozzle is a divergent nozzle (see figure 2-2 and 2-7) having a throat portion at which a passage sectional area becomes smallest in a refrigerant passage of the divergent nozzle;

the divergent nozzle has a first dimension between the throat and an outlet of the nozzle, and a second dimension between the throat portion and an upstream portion upstream from the throat portion, from which the passage sectional area becomes smaller in the refrigerant passage of the divergent nozzle, the first dimension being larger than the second dimension (see figure 2-7,

characterised in that

the pressure-increasing portion has a length (L') in a refrigerant flow direction and a smallest equivalent diameter (D2) and a ratio (L'/D2) of the length to the smallest equivalent diameter is equal to or smaller than 120; and

a ratio (D2/D1) of the smallest equivalent diameter of the pressure-increasing portion to an equivalent diameter at the outlet of the nozzle is in a range of 1.05 - 10 (see- table 2-2)".

4.4 Thus, the subject-matter of claim 1 according to the main request is not new.

5. Request for referral to the Enlarged Board of Appeal.

5.1 As explained above, the first amendment made to the claims does not constitute a clarification rather on the contrary; it compounds the shortcomings in this respect by introducing repetition and a lack of conciseness. Thus, the respondent's question has no basis in the present proceedings. Furthermore, the reason for prompting the amendment to claim 1 was raised by the appellant in the grounds of appeal. It is to the issues raised in these grounds that the respondent should reply without waiting for a provisional opinion from the board which it is, in any case, not obliged to provide.

5.2 Consequently, the request for referral to the Enlarged Board of Appeal is rejected since it is does not relate to a fundamental legal matter, but rather to one of procedure which lies entirely within the board's discretion.

Order

For these reasons it is decided that:

1. The request for referral to the Enlarged Board of Appeal is rejected.

2. The decision under appeal is set aside.

3. The patent is revoked.