T 1601/11 19-09-2013

I. European patent application No. 08152670.9, filed on 13 March 2008 in the name of Samsung SDI Co., Ltd., and claiming priority from KR 20070025072 (14 March 2007), was refused by a decision of the examining division which was announced orally on 11 January 2011 and issued in writing on 16 February 2011.

II. The examining division's decision was based on the claims of a main and first to third auxiliary requests.

Claim 1 of the main request and first auxiliary request referred to an organic light-emitting device comprising a first electrode, a second electrode, and one or more organic layers interposed between the first electrode and the second electrode, wherein at least one of the organic layers comprises one or more anthracene derivatives represented by a formula 1:

FORMULA/TABLE/GRAPHIC

wherein R1 and R2 are each independently a hydrogen atom, a substituted or unsubstituted C1-C30 alkyl group, a substituted or unsubstituted C1-C30 alkoxy group, a substituted or unsubstituted C6-C30 aryl group, a substituted or unsubstituted C6-C30 aryloxy group, a substituted or unsubstituted C4-C30 heteroaryl group, a substituted or unsubstituted C6-C30 condensed polycyclic group, a hydroxyl group, halogen, a cyano group, or a substituted or unsubstituted amino group;

wherein the at least one organic layer comprising the anthracene derivative represented by formula 1 further comprises an ionic metal complex, wherein the ionic metal complex is a compound represented by formulae 13 or 14:

Formula 13

FORMULA/TABLE/GRAPHIC

Formula 14

FORMULA/TABLE/GRAPHIC

wherein M is a metal of an oxidation state (II) and

wherein the at least one organic layer is an electron transport layer or an electron injection layer.

Claim 1 of the second and third auxiliary requests was identical to claim 1 of the main and first auxiliary request except that the ionic metal complex was restricted to that of formula 14.

In its decision, the examining division acknowledged, without providing reasons, that the subject-matter of all claims of the main request and the auxiliary requests complied with the provisions of Article 123(2) EPC. The application was nevertheless refused since the subject-matter of claim 1 of all requests was deemed to lack an inventive step.

III. On 15 April 2011, the applicant (hereinafter "the appellant") filed a notice of appeal against the above decision and paid the prescribed fee on the same day. A statement setting out the grounds of appeal was filed on 15 June 2011 together with a main and first to fourth auxiliary requests.

IV. In its first communication dated 18 June 2012, the board inter alia raised objections under Articles 123(2) and 84 EPC with regard to all claim requests.

V. In response thereto, by letter of 18 October 2012, the appellant filed a new main and first auxiliary request to replace all previously filed requests.

The main request contains the following claims:

"1. An organic light-emitting device comprising:

a first electrode;

a second electrode; and

one or more organic layers interposed between the first electrode and the second electrode, wherein at least one of the organic layers comprises anthracene derivatives represented by Formula 2:

FORMULA/TABLE/GRAPHIC

wherein the at least one organic layer comprising the anthracene derivative represented by Formula 2 further comprises an ionic metal complex, wherein the ionic metal complex is a compound represented by Formula 13, or 14 below:

FORMULA/TABLE/GRAPHIC

FORMULA/TABLE/GRAPHIC

wherein M is a metal of an oxidation state (II), and

wherein the at least one organic layer is an electron transport layer or an electron injection layer."

"2. The organic light-emitting device of claim 1, wherein the weight ratio of the anthracene derivative and the ionic metal complex is 5:95 to 95:5."

The claims of the first auxiliary request differ from those of the main request in that in the sixth line of claim 1, the wording "anthracene derivatives represented by Formula 2" has been replaced by the wording "anthracene derivative represented by Formula 2" and in that the ionic metal complex has been restricted to the compound represented by formula 14.

VI. On 10 December 2012, the appellant was summoned to oral proceedings.

VII. In its subsequent second communication dated 21 December 2012, the board raised objections under Articles 123(2) and 84 EPC against the newly filed main and first auxiliary requests. The board in particular explained that the combination of the anthracene derivative of claim 1 of both requests with the ionic metal complex of this claim appeared not to be clearly and unambiguously derivable from the application as filed. As regards claim 1 of the main request, the board further observed that this claim lacked clarity since the plural term "anthracene derivatives represented by Formula 2" appeared to be in contradiction to the subsequent formula, which represented only one single type of molecule. It was finally set out that the weight ratio in claim 2 of both requests appeared to lack clarity.

VIII. In its letter of 29 August 2013, the appellant informed the board that it did not intend to attend the oral proceedings and requested that a decision be rendered on the merits of the case. The appellant's letter did not contain any arguments with regard to the board's observations made in its second communication.

IX. On 19 September 2013, oral proceedings were held before the board. As announced, the appellant was not present at the oral proceedings.

X. The arguments presented by the appellant in reply to the board's first communication, in as far as relevant to the objections in the second communication, can be summarised as follows:

The anthracene derivative of claim 1 was clearly and unambiguously derivable from claim 4 as filed. Thus, there could be no doubt that the application as filed disclosed this anthracene derivative as a compound suitable for use as anthracene derivative of formula 1 of claim 1 as filed. The combination of the anthracene derivative of claim 1 with the ionic metal complexes of formulae 13 or 14 was also clearly and unambiguously derivable from the application as filed. The limitation to ionic metal complexes to those of formulae 13 or 14 did not result in a situation which was comparable to a selection from two lists of a "certain" length (ie of some length). The total number of ionic metal complexes of claim 8 as filed was only three. Thus, the list of alternatives of claim 8 as filed did not qualify as having a "certain" length. There could therefore be no reasonable doubt that the skilled person would clearly and unambiguously derive the subject-matter of claim 1 from the application as filed considered as a whole.

The board's objection that the wording "one or more anthracene derivatives represented by Formula 2" in claim 1 was in contradiction to the single anthracene derivative of formula 2 was overcome by the deletion of the wording "one or more".

XI. The appellant requested that the decision under appeal be set aside and that a patent be granted on the basis of the main, alternatively the first auxiliary request, both filed with letter dated 18 October 2012.