T 1147/11 29-11-2013

1. The appeal is admissible.

2. Main Request (Rule 80 EPC)

2.1 Amendments to the text of a granted patent during opposition and opposition appeal proceedings should be considered as appropriate and necessary within the meaning of Rule 80 EPC (which corresponds to former Rule 57a EPC 1973) and therefore admissible only if they can fairly be said to be occasioned by a ground for opposition under Article 100 EPC (or Article 100 EPC 1973). This is the established jurisprudence of the boards of appeal (see e.g. decisions T 295/87, OJ EPO 1990, 470, T 317/90 and T 823/93).

2.2 In first-instance proceedings, the opposition division found, inter alia, that granted claim 1 of the present European patent contained subject-matter which extended beyond the application as filed. Thus, the ground for opposition under Article 100(c) EPC 1973 prejudiced the maintenance of the granted patent.

The contested decision hinged on the question how the feature "shielding plate" in claim 1 as granted had to be interpreted, in particular because in the description of the patent as granted such shielding plate was shown in a different context. Due to the disclosure in paragraphs [0017], [0053] and [0099] of the A-publication (corresponding to pages 7 to 8, 34 and 60 of the application as filed) and in Figure 31, forming the basis for claim 1, which had been amended before the grant of the present patent, the shielding plate was considered by the opposition division as an additional part provided optionally to the member closing the opening portion, other than claimed in claim 1 as granted.

2.3 In appeal proceedings, the appellant deleted Figure 31 and all passages in the description as filed which disclosed the feature "shielding plate". In particular in view of the finding of the opposition division, these amendments could possibly cause a different interpretation of the subject-matter of the granted claims and, therefore, the claimed subject-matter in the light of the amended description might possibly be considered to be disclosed in the application as filed. In this context, however, it does not matter whether the appellant's attempt was successful or not, i.e. whether the ground for opposition was overcome or not as argued by the respondent.

Therefore, the board concludes that the amendments to the granted description and drawings are occasioned by the ground for opposition under Article 100(c) EPC 1973 and that the requirements of Rule 80 EPC are met.

3. Main Request - added subject-matter in the granted claims (Article 100(c) EPC 1973)

3.1 Claim 1 as granted is a combination of claims 1, 5 and 54 as originally filed (features a) to h)) and comprises the additional features i) to k), allegedly stemming from the description. Moreover, the description and drawings of the granted patent have been modified by deleting any reference to the term "shielding plate".

3.2 According to the jurisprudence of the Enlarged Board of Appeal (see G 2/10, OJ EPO 2012, 376, point 4.3 of the Reasons, referring to the standards already set in decisions G 3/89 and G 11/91 (OJ EPO 1993, 117 and 125)), it is required that "any amendment to the parts of a European patent application or a European patent relating to the disclosure (the description, claims and drawings) is subject to the mandatory prohibition on extension laid down in Article 123(2) EPC and can therefore, irrespective of the context of the amendment made, only be made within the limits of what a skilled person would derive directly and unambiguously, using common general knowledge, and seen objectively and relative to the date of filing, from the whole of these documents as filed" (emphasis added by the board). This means that the test for an amendment must be "that after the amendment the skilled person may not be presented with new technical information" (see G 2/10, point 4.5.1 of the Reasons, emphasis added by the board). With regard to a positive feature introduced into a claim (see G 2/10, point 4.5.2 of the Reasons), "it can be examined whether the subject-matter of that feature was disclosed in the application as filed. With respect to the new combination of features which is claimed after the introduction of that feature, it can be examined whether that combination was disclosed in the application as filed" (emphasis added by the board). The standard of comparison when judging any amendment therefore has to be the application - i.e. claims, description and drawings - as originally filed.

Moreover, according to the established case law of the boards of appeal, a claim should be read giving the words the meaning and scope which they normally have in the relevant art. Nevertheless, a patent, being a legal document, may be its own dictionary and may define technical terms and determine how a skilled person has to interpret a specific term when used in the description or the claims. If it is intended to use a word which is known in the art to define specific subject-matter to define a different matter, the description may give this word a special, overriding meaning by explicit definition (see e.g. T 500/01, point 6 of the Reasons, and T 61/03, point 4.2 of the Reasons).

3.3 The mere deletion of passages in the description or deletion of Figure 31 in the documents according to the present Main Request has not been objected to by the respondent. Claim 1 according to the Main Request, which is identical to claim 1 as granted, was amended before the grant of the present patent. In this respect, the board notes that, for examining the ground for opposition under Article 100(c) EPC 1973, it has to be assessed whether claim 1 contains subject-matter which extends beyond the content of the divisional application as filed, in particular (see above) in comparison with the whole of the documents (i.e. claims, description, drawings) as filed. In this regard, the meaning of the term "shielding plate" incorporated in features i) and j) plays a crucial role.

3.4 The term "shielding plate" defines as structural feature a "plate" which is further characterised by its function of "shielding". Moreover, in the context of features i) and j), the term "shielding plate" is associated with further functions, i.e. the "opening portion is closed with a shielding plate" and "can be opened by detaching the shielding plate" when the combustion chamber is actuated. The fact that an opening portion which is closed and opened by detaching a closing element is originally disclosed has not been put into question by the parties. However, it has to be assessed whether it is originally disclosed that said closing element might provide a shielding function as well and might be realised as a plate.

3.5 A plate as such closing a through-hole is disclosed in paragraph [0099] of the A-publication ("the through-hole 1110 is closed by the stainless plate 1111"; "instead of closing the through-hole 1110 by the stainless plate 1111, a breaking plate which is broken, peeled, burnt or detached by pressure or the like due to the combustion of the second gas generating agent may be welded, adhered or heat-sealed to close the through-hole 1110"). As regards the claimed shielding function, when reading claim 1 on its own, the skilled person would understand that a shielding function normally describes a protective function with respect to a further part which has to be protected or shielded from external influences.

If the skilled person were in doubt as to whether - in addition to the closing/opening function as described in features i) and j) - the term "shielding" has any further meaning or limiting effect at all, he would consult the description to interpret the specific term "shielding" used in claim 1 because the patent may be its own dictionary as mentioned above. In different passages of the application as filed, the "shielding plate" is consistently described as an additional part providing the function of shielding, i.e. protecting a member which closes the opening portion, whereby said closing member already forms part of the opening portion. In particular:

- Claim 8 as filed specifies that "a shielding plate is disposed outside of the opening portion", i.e. the plate providing the shielding function is clearly situated "outside" and therefore separated from the part or portion providing the opening function.

- According to pages 7 and 8 as originally filed (corresponding to paragraph [0017] of the A-publication), the "opening portion may be formed by forming a plurality of holes in the peripheral wall of the inner shell, and by closing the holes using breaking members. ... A shielding plate can be disposed outside of the opening portion". The opening portion as defined in this passage comprises holes closed by a breaking member (note: the term "opening portion" would not make sense when describing a part which is always open). The shielding function is further described as to "prevent flame generated in the combustion chamber provided outside the inner shell from coming into direct contact with the opening portion". In the board's view, the skilled person, when reading this passage, would derive only that the shielding plate is an additional part "outside of the opening portion" which protects the breaking member which closes the holes of the opening portion and which is opened (see paragraph [0017]) e.g. by "detaching the breaking member".

- Page 34 of the application as originally filed (paragraph [0053] of the A-publication) describes that "the opening portions 5 comprise a plurality of holes 6 formed in the peripheral wall of the inner shell 4 and a breaking member 7 for closing these holes. As for the breaking member 7, a stainless seal tape is used." The breaking member is formed such that it is not broken by combustion of the first gas generating agent. As a further alternative, it is mentioned that "alternatively, as another way to prevent the opening portions ... it is also possible to cover the opening portions 5 of the inner shell 4 with a shielding plate". Again, the skilled person, reading this passage, will recognise that the opening portion comprises holes and a breaking member, and the shielding plate is an additional part ("to cover the opening portions") which might be provided in addition if the breaking member cannot resist the combustion of the first gas generating agent.

- The embodiment described on page 60 as originally filed (corresponding to paragraph [0099] of the A-publication) shows "a substantially ring-like shielding plate 1186" as shown in Figure 31 and "disposed such as to cover the through-hole 1110 formed in the inner cylindrical member 1104". As depicted in Figure 31 and explicitly mentioned, a "seal tape which closes the through-hole 1110 is protected by the shielding plate 1186". Again, the shielding plate represents an additional part for protecting another part (a "seal tape") which closes the through-hole.

- Page 104 as originally filed (corresponding to paragraph [187] of the A-publication) mentions "a peripheral wall thereof provided with an opening portion 660", and the "opening portion is closed by a seal tape 622", which according to the appellant should suggest that the opening portion is represented only by a communication hole. However, elsewhere in the said passage, it is said that the "opening portion 660 is formed so that it does not open by combustion of the gas generating agent 609a in the first combustion chamber 605a". Since the function of "opening" is again attributed to the opening portion in this embodiment, the opening portion cannot be represented by a hole alone but must include a closing member, i.e. the seal tape 622 forms part of the opening portion.

3.6 The board therefore concludes that the "shielding" function, according to the application as originally filed, designates a specific function in addition to the closing function that is realised by a closing member (e.g. breaking member or seal tape), i.e. always relating to a separate part (i.e. the "shielding plate") which does not close the holes provided in the inner shell but which is provided "outside of the opening portion" or which "covers the opening portion" in order to protect the opening portion. In particular, there is no disclosure in the application as filed which would suggest that the shielding plate covers the opening portion entirely in a sense that the opening portion would be "closed" by the shielding plate. Therefore, the "shielding plate" feature as claimed is to be construed as meaning a part which is provided in addition to another part which closes the holes.

3.7 To summarise, the application as filed discloses an inner shell of the multistage gas generator that comprises - as part of the opening portion - a breaking member (e.g. a stainless plate, breaking plate or seal tape) which closes the holes of the inner shell. The breaking member is either, due to its design or characteristics, resistant to the flames of the combustion of the first gas generating agent (without the need to provide a further protective part), or is protected by an additional shielding plate outside to cover the opening portion, corresponding to alternatives a and b as identified by the appellant.

As basically admitted by the appellant with regard to the description of the granted patent, it is not originally disclosed that the shielding plate, optionally used as an additional protective part, might be used to close the holes. Such shielding plate, as now claimed by the combination of features i) and j) in claim 1 according to the Main Request, would contain the new technical information that, in addition to the seal tape or breaking member or breaking plate or stainless plate closing the holes in the inner shell originally described as closing members, the shielding member would be a further closing member, i.e. the holes would be closed by two parts. However, the term "shielding plate" already - due to the functional feature "shielding" - has a specific meaning in the context of the application as originally filed and cannot be used for defining a part which closes an opening portion and detaches as specified in features i) and j).

Therefore, the board judges that the amended subject-matter according to claim 1 of the Main Request is not directly and unambiguously derivable by the skilled person from the application as filed.

3.8 The appellant cited paragraphs [0076] and [0077] of the A-publication to show that parts were interchangeable and different parts could be used in combination. However, said passages explicitly relate to "the AIM, the communication hole, the connector, the self-contracting type filter or a combination thereof", not addressing modifications with regard to the member closing the hole. The general remark in paragraph [0076] that "the gas generator can also be realized by combining other parts described in the present specification" is not suitable for deriving directly and unambiguously that a breaking member or plate, which closes the holes of the inner shell, might be replaced by a shielding plate as described in the application as filed, in particular because the shielding plate is originally described only to be an additional protective part protecting the member which closes the hole and not described to be a part which is designed to close the holes.

3.9 The appellant also argued, referring to the deletion of the term "shielding plate" from the description and the deletion of Figure 31 in the documents forming the basis for its Main Request, that the description of the Main Request was clarified so that it no longer referred to any feature in addition to the feature for closing the opening portion. The skilled person was therefore forced to interpret the term "shielding plate" in the light of the remainder of the description, concluding that the shielding plate as claimed corresponded to the breaking plate and the stainless plate listed as members for closing the through-hole.

Without further reference to an additional or optional shielding plate in the description or figures, it has to be assessed whether the term "shielding plate" according to claim 1 describes nothing more than a plate preventing "a flame caused by combustion of the first gas generating agent 1109a from flowing into the second combustion chamber 1105b through the through-hole 1110 to burn the second gas generating agent 1109b", as described on page 60 of the description according to the Main Request for the "stainless plate" or the "breaking plate". However, as regards the requirements of Article 100(c) EPC 1973, it has to be examined whether the claimed subject-matter of the European patent in the light of the amended description was disclosed in the application as filed, i.e. by taking into account the disclosure of the claims, description and drawings of the divisional application as filed.

Page 50 of the amended description, starting with the description of the corresponding example ("Example of AIM 1") of page 60 of the amended description, explicitly refers to "another example of the gas generator for an air bag, which does not form part of the invention but which is useful for a better comprehension thereof". This suggests to the reader of the amended description that the "stainless plate" or "breaking plate" as mentioned on page 60, referring to this example, also does not form part of the claimed invention. Therefore, the board is not convinced by the appellant's argument that the "shielding plate" of claim 1 means nothing more than one of the two plates mentioned on page 60 of the amended description. On the contrary, since the breaking plate is also described on page 60 to be "broken, peeled, burnt or detached ...", or "the inner cylindrical member 1104 may be provided with a notch", the shielding plate as defined in claim 1 according to the Main Request - in the context of the amended specification - cannot be unambiguously equated to a plate described with respect to an example not forming part of the invention. In the board's view, even in the light of the amended description, the feature "shielding plate" as claimed does still relate to an additional part (in addition to the stainless plate or breaking plate, or even the notch provided in the inner cylindrical member) for closing the through-hole. In particular, the functional feature "shielding" attributed to the "shielding plate" is considered to have a technical meaning within the meaning of a protective part, e.g. preventing the breaking plate which might be burnt from coming into contact with a flame caused by combustion of the first gas generating agent.

Moreover, the example described with reference to Figure 1 (see page 26 ff. of the amended description), under the headline "Mode for Carrying Out the Invention", in which the opening portions comprise a plurality of holes and a breaking member which is specified to be a "stainless seal tape" (see page 34 of the amended description), is also defined as not forming part of the invention, i.e. again a shielding plate as claimed relates to a part which is provided in addition. As to the amended "Brief Description of the Drawings" (see pages 22 to 24 of the amended description), it is explicitly stated (in particular with reference to Figs. 1, 8, 18, 19, 22 to 25, 28 and 32 where a single closing member is shown) that the example shown does not form part of the invention.

Therefore, also in view of the amended description, it must be assumed that a shielding plate as defined in claim 1 according to the Main Request is provided in addition to the breaking members described with regard to the examples not forming part of the invention. However, as already stated above (see point 3.7), it is not directly and unambiguously derivable from the application as filed that a shielding plate is provided as further closing and detaching member in addition to one of the breaking members according to the examples described in the amended description.

3.10 In view of the above, claim 1 of the Main Request contains subject-matter which extends beyond the content of the divisional application as filed. Therefore the ground for opposition under Article 100(c) EPC 1973 prejudices the maintenance of the present patent according to the Main Request. Consequently, the Main Request is not allowable.

4. Admission of Auxiliary Requests III and IV (Article 13(1) RPBA)

Article 13(1) RPBA (Rules of Procedure of the Boards of Appeal, OJ EPO 2007, 536) states that "Any amendment to a party's case after it has filed its grounds of appeal or reply may be admitted and considered at the Board's discretion. The discretion shall be exercised in view of inter alia the complexity of the new subject matter submitted, the current state of the proceedings and the need for procedural economy."

The present Auxiliary Requests III and IV were filed one month before the date of oral proceedings. Although two sets of auxiliary requests had already been filed earlier in appeal proceedings, the board notes that the appellant adhered to limitations of the claimed subject-matter as submitted with its previous requests. In particular, the replacement of the term "shielding plate", objected to with regard to the Main Request, by "breaking plate" according to Auxiliary Request III did already form part of the auxiliary requests filed in first-instance opposition proceedings. The replacement of "shielding plate" by "stainless plate" according to Auxiliary Request IV relates to a further variant disclosed in the context of the same embodiment as the "breaking plate" and does not raise further issues because, for the rest of the wording of claim 1, both requests have been amended likewise. Therefore, the respondent's argument that the appellant was trying "to fish for patentable subject-matter" is not convincing.

Moreover, claim 1 has been amended in both Auxiliary Requests III and IV by replacing the feature "opening portion" by "through-hole", whereas the auxiliary requests filed before either maintained the feature "opening portion" or had it replaced by "hole". Since the respondent argued only in its last submission, subsequent to its reply to the statement of grounds of appeal, that the feature of a "hole that is closed with a breaking plate" was considered to be an inadmissible generalisation, the filing of Auxiliary Requests III and IV is considered to be a timely reaction to the new objection raised by the respondent itself. Furthermore, these amendments are not complex and do not raise any new issues.

Therefore, in exercising its discretion under Article 13(1) RPBA, the board admitted both Auxiliary Requests III and IV into the appeal proceedings.

5. Extension of the scope of protection with regard to amended Auxiliary Requests III and IV (Article 123(3) EPC)

5.1 The board finds that the amendments to the patent according to Auxiliary Requests III or IV extend the protection conferred by the patent and therefore violate Article 123(3) EPC.

5.2 In its granted version, claim 1 defines that an opening portion is closed with a shielding plate before actuation and can be opened by detaching the shielding plate according to features i) and j). These features were added, inter alia, in the proceedings before grant to claim 1 as filed and limit the scope of protection of the claims as granted. A limiting feature which falls under Article 123(2) EPC, as pointed out above with regard to the Main Request (see above point 3.7), cannot be removed from the claims without violating Article 123(3) EPC if it cannot be replaced by another feature disclosed in the application as filed without violating Article 123(3) EPC (see G 1/93, point 13 of the Reasons).

In this context, it is noted that the feature "opening portion closed with a shielding plate" in claim 1 as granted, and in particular the functional feature "shielding" (as argued above in paragraph 3.4 with regard to the Main Request), is not considered to be a feature without any technical meaning which might be deleted from a claim without violating Article 123(3) EPC (see G 1/93, point 4 of the Reasons). Moreover, it must be considered whether amending the description by deleting passages relating to the "shielding plate" and deleting Figure 31 also has an influence on the interpretation of the scope of protection conferred by the amended patent according to Auxiliary Requests III and IV, since a mere deletion of a sentence in the description can already lead to an extension of the scope of protection (see e.g. T 142/05, conclusion under point 5 of the Reasons).

5.3 According to Auxiliary Request III or IV, claim 1 has been amended, on the basis of page 60 of the description as filed, by replacing the term "shielding plate" by "breaking plate" or "stainless plate", which closes a "through-hole" instead of the "opening portion" as claimed before, and which is "configured to prevent a flame ..." (added feature l)). Moreover, any reference to the "shielding plate" was deleted in the amended description and drawings.

Therefore, the question to be answered in the present case is whether features i) and j) according to claim 1 as granted that "an opening portion is closed by a shielding plate ... and can be opened by detaching the shielding plate", which have been objected to with regard to Article 123(2) EPC (see previous finding with regard to the Main Request), can be replaced by the new features that a "through-hole is closed with a breaking plate or stainless plate ... and can be opened by detaching the breaking/stainless plate", properly disclosed in the application as filed, without extending the protection conferred by the patent as granted, taking into account the amended description and drawings.

5.4 As argued with respect to the Main Request (see above points 3.7), claim 1 as granted was directed to an embodiment where the shielding plate would be a further closing member in addition to the closing member of the opening portion, i.e. the holes would be closed by two parts. Such embodiment was not originally disclosed, so the Main Request was not allowable. However, when replacing in claim 1 the feature "shielding plate" by "breaking plate" (Auxiliary Request III) or "stainless plate" (Auxiliary Request IV), which according to further definitions given in claim 1 ("to prevent a flame caused by combustion of the gas generating agent (52) of the combustion chamber (50) defined outside said inner shell (4) from flowing through the through-hole") already incorporates the function originally assigned to the shielding plate (see e.g. paragraph [0017] of the A-publication), the through-holes as claimed are already sufficiently protected without further need to provide any additional shielding plate.

Moreover, the amended description and amended drawings, filed together with Auxiliary Requests III and IV, no longer contain any hint to a further shielding plate. Therefore, also when taking into consideration the provisions of Article 69(1) EPC and the Protocol on the Interpretation of Article 69 EPC, revised by the Act revising the EPC of 29 November 2000, the subject-matter claimed in claim 1 according to Auxiliary Requests III and IV relates to an embodiment of the claimed multi-stage gas generator which comprises only a single member closing the through-hole, i.e. a plate defined either as a breaking plate or as a stainless plate.

5.5 Therefore, the protection conferred by the amended patent according to Auxiliary Requests III and IV includes embodiments where a single part provides both the function of closing (feature i)) and shielding (feature l)), whereas the protection conferred by the patent as granted relates only to embodiments requiring two parts for performing these two functions, i.e. where a shielding plate - in the light of the description as granted - must be construed as an additional plate having a clearly defined function of protecting/shielding and where another part is used as a closing member for closing the holes.

5.6 The appellant has cited several decisions of the boards of appeal where an amendment clarifying an inconsistency or a replacement of an inaccurate statement by an accurate statement of the technical features was found not to contravene Article 123(3) EPC. However, these decisions do not apply to the present case for the following reasons.

As already concluded in decision T 271/84 (see Headnote), an "amendment to a claim to clarify an inconsistency does not contravene Art. 123(2) or (3) if the amended claim has the same meaning as the unamended claim, on its true construction in the context of the specification". This was confirmed later in T 438/98 (see point 3.1.3 of the Reasons: "a prerequisite for an amendment to be admissible is that the granted claim properly construed could only be interpreted as the amended claim"). However, such prerequisite for an amendment is not fulfilled in the present case. The term "shielding plate" in granted claim 1 was described throughout the application as filed (and throughout the description of the granted patent) as an additional protective part, in addition to the closing member closing the holes in the inner shell (as argued above in 3.7), whereas the "breaking plate" or "stainless plate" according to amended claims 1 of Auxiliary Requests III and IV represented a part closing the holes (see above 5.4). Therefore, in the context of the description (as filed and as granted), it was not directly and unambiguously derivable that the terms "shielding plate" and "breaking/stainless plate" could be replaced by each other without changing the meaning of the claimed subject-matter.

In decision T 371/88, a restrictive term ("disposed in parallel with") was replaced by a less restrictive term ("also transversely disposed") embracing a further embodiment, but it was quite clear from the description and the drawings of the patent that it was never intended to exclude the further embodiment from the protection conferred. However, in the present case the term "shielding plate" - also when taking into account the description and drawings of the patent - has a well-defined meaning defining an additional part protecting a closing member, and there is no indication in the specification that said part was intended to be used as the closing member as such, i.e. the subject-matter of claim 1 according to Auxiliary Requests III and IV defines an embodiment different from the embodiment defined by claim 1 as granted.

Moreover, the situation addressed in decision T 190/99, relating to subject-matter defining a geometrical relationship ("parallel") and including statements concerning the interaction of a plurality of items of a plurality of types, is different to that in the present case where the interaction of three items ("shielding plate", "opening portion" comprising a closing member and a hole) according to claim 1 as granted has been replaced by the interaction of only two items ("breaking/stainless plate", "through hole").

As regards decision T 108/91, an inaccurate technical statement concerning the condition of a part in its locked position ("shoulder means is retained in a substantially unstressed locked position") has been replaced by an accurate statement of the technical features involved ("bending means unstressed in their lower, locked position"). However, the board is not convinced that, in the present case, "once recourse is had to the description and drawings of the patent specification, that what is defined in granted Claim 1 could not be that for which protection was sought and that the intended meaning must have been the equivalent of what is stated in this respect in the amended claim" (see T 108/91, point 2.3 of the Reasons).

In the present case, the feature of a shielding plate according to granted claim 1 which closes an opening portion (which also requires that the shielding plate has to detach as defined in granted claim 1) represents a more specific embodiment of a shielding plate which according to the patent specification as a whole is specified to "cover the opening portions" closed already by a closing member (see paragraph [0053] or also Figure 31). As argued above, it is not disclosed originally that the shielding plate covers entirely (or "closes") the opening portions including a closing member and detaches by actuation of the combustion chamber. Such specific embodiment as defined in claim 1 as granted, although technically meaningful, which was not originally disclosed, cannot be replaced by merely specifying a breaking or stainless plate which closes a through-hole according to claim 1 of Auxiliary Request III or IV, without violating Article 123(3) EPC. In particular, the "approach to the admissibility of a broadening amendment to a granted claim" (see T 108/91, point 2.4 of the Reasons), according to which an "offending feature in granted Claim 1 effectively excluded" either one embodiment (see T 371/88) or all of the embodiments disclosed (see T 108/91), is not considered applicable in the present case.

5.7 As a consequence, the protection conferred by the amended patent according to Auxiliary Request III or IV is extended in comparison to that conferred by the patent as granted. Hence the requirements of Article 123(3) EPC are not fulfilled in the present case. It follows that Auxiliary Requests III and IV are not allowable.

6. Since none of the appellant's requests is allowable, the appeal must be dismissed.