T 0675/13 (Adaptive graphic controllers/LG) 22-01-2016

1. Non-attendance of the appellant at oral proceedings

1.1 The appellant decided not to attend the scheduled oral proceedings before the board and withdrew its request for them (cf. point VI above). Pursuant to Article 15(3) RPBA, the board is not "obliged to delay any step in the proceedings, including its decision, by reason only of the absence at the oral proceedings of any party duly summoned who may then be treated as relying only on its written case."

1.2 In the present case, the appellant filed an amended set of claims and provided comments in support of its patentability in response to the objections raised in the board's communication under Article 15(1) RPBA. The board considered the new claim request and noticed that claim 1 - though appearing to overcome the objections under Article 123(2) EPC raised in the board's communication - still gave rise to admissibility concerns and further objections under Article 123(2) EPC (cf. points 2.32.3 and 2.42.4 below). So, in the exercise of its discretion conferred by Article 15(3) RPBA, the board took a decision at the end of the oral proceedings, in the absence of the appellant (Article 15(6) RPBA).

2. Admission of latest claims into appeal proceedings

2.1 The claims now on file were filed for the first time with the appellant's letter of reply to the summons to oral proceedings before the board. The admissibility of requests filed after the appellant has filed its statement setting out the grounds of appeal, which "shall contain a party's complete case" (cf. Article 12(2) RPBA), and after a board has arranged oral proceedings is governed by Article 13(1) RPBA.

By virtue of Article 13(1) RPBA, a board's discretion in admitting any amendment to a party's case after it has filed its statement setting out the grounds of appeal "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 board notes that the list of criteria set out in Article 13(1) RPBA is not exhaustive ("in view of inter alia"). Thus, other

well-established criteria relevant to the admissibility issue may also be taken into account, such as the question whether a claim request clearly overcomes the outstanding objections (see e.g. R 1/13 of 17 June 2013, reasons 16.2). Another criterion used by several Boards of Appeal is whether a claim request could have been presented in the first-instance proceedings, by analogy with the criterion first mentioned in Article 12(4) RPBA, albeit the latter applies for sets of claims submitted with the statement setting out the grounds of appeal.

2.2 In the case at hand, the claims on file are obviously related to the embodiment based on Figure 2 of the present application and concerned with adaptively controlling the number and type of graphic controllers in consideration of the amount of image data to be processed (cf. application as filed, page 8, line 8 to page 11, line 4; page 16, line 10 to page 17, line 9 in conjunction with Figure 2). Similar claims relating to the same embodiment had already been filed by the then applicant and were objected to by the examining division under Article 56 EPC in the first-instance proceedings (see applicant's letter dated 14 May 2009 and the examining division's communications dated 13 July 2010 and 14 April 2011). The then applicant, of its own volition, subsequently replaced those claims with an amended set of claims directed to an embodiment ("third embodiment") based on Figure 6 of the present invention (cf. application as filed, page 16, lines 8-9 and page 18, line 11 to page 19, line 3), concerned with selecting one appropriate graphic controller based on the "application type" criterion, in order to overcome those objections (cf. applicant's letter dated 16 September 2011). On the basis of that amended set of claims, the application was ultimately refused under Articles 123(2) and 54 EPC (cf. appealed decision, section 2) and was also further pursued at the start of the appeal proceedings with the statement setting out the grounds of appeal.

2.3 In view of the above, the board finds that the present claim set constitutes a shift of focus as to the claimed subject-matter from the "third embodiment" of the present invention (directed to selecting a single graphic controller out of multiple controllers for application-based image processing), as covered by the main and auxiliary requests submitted with the statement setting out the grounds of appeal, to a different embodiment (directed to operating an adaptive number of available graphic controllers for

amount-based image processing), as covered by present claim 1. Its admission at this procedural stage, however, would arguably have necessitated remittal to the examining division, contrary to the criterion of procedural economy as expressly mentioned in Article 13(1) RPBA (see also e.g. T 980/08 of 14 March 2012, reasons 4; T 1940/11 of 7 November 2014, reasons 4.1). Therefore, the board judges, for those reasons alone, that the present claim set cannot be admitted into the proceedings.

In addition, the embodiment which present claim 1 covers, i.e. adaptively changing the number and type of graphic controllers in consideration of the amount of image data to be processed, had already been pursued in the first-instance proceedings and was then abandoned, thus preventing that aspect of the invention from being decided on its merits by the examining division. Its reinstatement would allow a kind of inadmissible "forum shopping" (see e.g. T 2017/14 of 6 March 2015, reasons 3.3). The board concludes from the foregoing that claims directed to the present embodiment not only could but also should have been prosecuted in the examination proceedings (Article 12(4) RPBA), so that they would have been subject to an appealable decision.

2.4 Furthermore, the added feature of present claim 1, i.e. "operate only the first graphic controller when the amount of image data to be processed is lower than a first amount of image data, while keeping the second graphic controller in the Link power state L0s or L1" (emphasis added) gives rise to additional objections under Article 123(2) EPC, since the application as originally filed teaches that the power state of one of the two graphic controllers is transited to (rather than kept at) the power states L0s or L1 in the event that the other graphic controller is operated (see e.g. page 12, lines 3-7). Thus, claim 1 is not clearly allowable.

2.5 Hence, in the exercise of its discretionary power under Article 13(1) RPBA taken alone or in combination with the criterion of Article 12(4) RPBA, the board declined to admit the sole set of claims on file into the appeal proceedings.

3. As there is no other set of claims submitted or agreed by the appellant within the meaning of Article 113(2) EPC 1973, the present application has consequently no claims in the sense of Article 78(1)(c) EPC 1973. The appeal must therefore be dismissed.