T 0737/08 17-06-2010

1. Admissibility of the Appeals

Appeal of Appellant I, H3B Holdings Ltd

1.1 A notice of appeal requesting that the decision be set aside was filed by this appellant on 8 April 2008, asserting that it was "Master Licensee" acting on behalf of the proprietor of the patent in suit, namely "Franz Haase" (Appellant II). However, H3B Holdings Limited did not claim to be and was not at the time either the proprietor of the patent in suit (see below) or able to represent the proprietor in proceedings before the EPO (see Article 134(1) EPC). For this reason alone, this appeal must be rejected as inadmissible.

Appeal of Appellant II, Franz Haase III

1.2 A notice of appeal was filed by a representative on behalf of this appellant on 10 April 2008, claiming to be the registered proprietor. The patent in suit had been granted in the name of Franz Haase III, who also was and still is named as proprietor in the Register of European Patents, and who as proprietor was also a party to the decision to revoke the patent. Prima facie therefore, the notice of appeal was filed by a person adversely affected by the decision to revoke the patent (Article 107 EPC). A statement of grounds of appeal was subsequently filed on behalf of this appellant on 11 June 2008.

1.3 However, the above notice of appeal filed on behalf of Appellant II also stated that there had been a transfer of rights from Franz Haase III to Kwench Systems International LLC (Appellant III) and that "for the avoidance of doubt" notice of appeal was also given on behalf of Appellant III. A single appeal fee was paid. At that stage, no evidence of any transfer had been filed with the EPO, no request had been made to register any such transfer and no appropriate transfer fee had been paid. The notice as signed by the representative was followed by the words "Professional Representative for Kwench Systems International LLC, Association No. 177".

1.4 The Respondent argues that the appeal by Franz Haase III is inadmissible. It is argued, first, that while it is legitimate to file a single appeal in the name of alternative appellants where there is uncertainty as to the correct appellant (see G 2/04, OJ EPO 2005, 549, point 3.2 of the decision), in the present case there was no uncertainty because no transfer of proprietor had been requested and so no appeal could have been filed on behalf of Appellant III. However, the Respondent goes on to argue that no appeal could have been filed on behalf of Appellant II either since at the relevant time it was no longer the proprietor of the patent. The Board understands this to be a reference to the fact that a transfer of the patent, based on an assignment dated 22 September 2005, had in fact been registered in the United Kingdom register of patents on 22 May 2006. Although the Board considers this latter argument to be wrong (see paragraph 1.8), the Respondent cannot have it both ways: the mere fact of the argument, even if wrong, shows that it was legitimate for a notice of appeal to be filed in the names of alternative appellants.

1.5 The Respondent argues, secondly, that the notice of appeal was filed by the representative expressly on behalf of Appellant III, and therefore was not filed on behalf of Appellant II. Further, although an earlier authorisation dated 28 November 2006 had been filed by the representative, this named Franz R. Haase as the client and there was nothing to show that this was the same person as Appellant II (Franz Haase III). In any event, at this date, the United Kingdom patent had already been transferred to Appellant III and so the authorisation could not have been effective.

1.6 The Board cannot accept these arguments. Although the words underneath the signature to the notice of appeal indicate that the representative was acting on behalf of Appellant III, this does not contradict the earlier statement in the notice that the notice of appeal was also given on behalf of the registered proprietor, Appellant II. Subject to the point made by the Respondent about the precise identity of the client, the representative had been acting for Appellant II in the opposition proceedings and there is nothing to suggest that he no longer had authority to act when the notice of appeal was filed. Given the background circumstances, the ordinary reading of the notice is also that the representative was claiming authority to act for both named appellants. As to the identity of his client, the Board has no reason to believe that Franz R. Haase was not the same person as Appellant II (Franz Haase III). The letter dated 20 December 2006 enclosing the authority ran as follows:

"Re: EP 1,132,528 B1

Proprietor: Haase, Franz III

I act on behalf of the proprietor (Franz Haase) of the above patent, and enclose a copy of a letter dated 28th November 2006, which authorises [the representative's firm] to represent the proprietor in relation to patents held in his name. ..."

The position could hardly have been clearer.

1.7 The appeal of Franz Hasse III is therefore admissible.

Appeal of Appellant III, Kwench Systems International LLC

1.8 For a transferee of a patent to be entitled to appeal, the necessary documents establishing the transfer, the transfer application and the transfer fee must all be filed before the expiry of the period of appeal: see T 656/98 (OJ EPO 2003, 385), headnote. This was not done in the present case, so that as far as the EPO is concerned Franz Haase III was still the proprietor at the date of the notice of appeal. On any basis therefore, this appeal must be rejected as inadmissible.

2. Admissibility of evidence

The document E9, filed during the opposition procedure on 11 December 2007, one month before the date set for the oral proceedings, describes a water distribution system for supplying both domestic and fire sprinkler water. Contrary to the view of Appellant II and the Opposition Division, E9 discloses the concept of a substantially non-stagnant water flow through a combined sprinkler-plumbing system. The Board thus considers E9 to be very relevant and therefore, in accordance with Article 12(4) RPBA, E9 is admitted into the proceedings. Moreover, E13, filed on 27 October 2008 with the Respondent's reply to the grounds of appeal is admitted into the proceedings, because a threaded "Grinnell" sprinkler head is described therein (Article 12(4) RPBA). This has not been objected to by Appellant II.

3. Admissibility of further alternative request of Appellant II

Appellant II also requested that the patent be maintained alternatively on the basis of "one or more of the subsidiary claims" (see point IV above). The subject-matter of this request is so vague that it could not be reasonably dealt with by the Board. Hence the further alternative request of Appellant II was not admitted into the proceedings (Article 12(4) RPBA).

4. Novelty and inventive step of claim 1

(Article 100(a) EPC; Articles 54 and 56 EPC)

4.1 Document E9 describes a combined residential sprinkler and cold water plumbing system which forms a grid having no dead ends, ie a closed, integrated water distribution system of the type defined in claim 1. With this water system, "water comes to each sprinkler from several sources", ie from the ports of other fittings, whereby "all of the sprinklers are interconnected": cf. page 5, first column last paragraph to page 5, second column. According to E9 (page 6, right column), it is expected that, even if the water in a pipe freezes, adequate water for fire protection would still be provided, because, in this gridded system, "there are so many paths water may take to reach the sprinklers".

In the Board's view, in order that all the sprinklers are interconnected within the grid system of E9, where each of the sprinklers has three or four lines going to it (E9, page 5, second column), each sprinkler must be provided with a plurality of ports. This is also indicated on page 6, left column of E9 under "The major components of the system", which mentions 26 Grinnell low pressure sprinklers and 26 four-port fittings; it is apparent that these sprinklers and four-port fittings are used together. The ports of at least two, ie a plurality, of the 26 four-port fittings are interconnected by means of the non-metallic polybutelene, ie flexible, pipes, which are also described as major components of E9's system on page 6, left column.

Therefore, E9 discloses a plurality of multiport fittings, each capable of being fluidly coupled to a fire sprinkler assembly, and a plurality of flexible conduits interconnecting this plurality of multiport fittings establish the (sprinkler's) water network, wherein a fire sprinkler assembly is fluidly connected to this network according to paragraphs two, three, and five of claim 1 of the main and first auxiliary requests.

Moreover, the integrated water distribution system of E9 also provides the cold water for the domestic plumbing: "occupants will be checking the combined sprinkler-plumbing system for water availability each time a cold water fixture is opened" (page 6, right column), and an annual inspection of the sprinklers will not be required, since with the combined system, if the house-hold plumbing works, so also will the sprinklers (page 5, right column first paragraph). Therefore, the plumbing fixtures of E9 are fluidly connected to E9's sprinkler network and when an occupant uses any one or more of the plumbing fixtures of E9's system the water flow is substantially non-stagnant, as is required by paragraph four of claim 1, is also disclosed in E9.

Thus, claim 1 of the main request lacks novelty over the disclosure of E9.

Since E9 discloses a plurality of multiport fittings capable of being fluidly coupled to a fire sprinkler assembly (see above), the subject-matter of the first auxiliary request also lacks novelty.

From the above, E9 also discloses a fire sprinkler head secured to an associated multiport fitting, with water flow established within the entire system, as defined in claim 1 of the second, third and forth auxiliary requests. Hence, the subject-matter of these requests also lacks novelty.

4.2 Claim 1 of the fifth auxiliary request differs from E9 in that the specific way of connection of the "Grinnel" sprinklers to the four-port fittings by using a threaded connection is not disclosed on page 6 of E9. However, multiport fittings, threadedly receiving and securing a conventional sprinkler head such as a "Grinnel" sprinkler, are generally known in the art: cf. the sprinklers of E3 in figure 2 and the "Grinnel" sprinkler heads shown in, eg, E13. Hence, the Board agrees with the Respondent that, based on page 5, second column of E9, the skilled person, using his common technical knowledge would consider threadedly securing a "Grinnel" sprinkler to its corresponding four-port fitting as being a trivial design measure.

Thus, the subject-matter of claim 1 of the fifth auxiliary requests lacks an inventive step.