T 1459/13 15-01-2015

1. The appeal is admissible.

2. Main request

2.1 The Board judges that the reason given by the Examining Division in the communication dated 7 November 2012, to which the contested decision refers, in support of the conclusion that the subject-matter of claim 1 of the main request is not novel over the disclosure of document D1, are correct.

2.2 The Appellant submits that the bumper of document D1 does not disclose crush cans. For the person skilled in the art, a crush can is a well known energy absorbing element which is mounted at the outer board location on the bumper beam and configured to address corner or offset impact.

In this respect, it is noted that the present application EP-A-2 284 045 (D0) does not include any definition of a crush (or crash) can. In paragraph [0006] of D0, it is merely disclosed that "the crash cans absorb energy during impact, e.g. an offset impact". An offset impact is not necessarily a corner impact; also a frontal impact which is not centered can be regarded as an offset impact. Nor is there any evidence in the file in support of the Appellant's allegation that crush cans are only designed for corner protection. In fact, it would appear that a crush can is a collapsible energy absorbing element used in bumpers, which is also well suited for frontal impacts (see e.g. D2, in particular page 1 and Fig. 2). The crush can 12 of the present application includes a plurality of spaced walls 50,52,54 (paragraph [0021] of D0). They are shown in Fig. 4 to 6 of D0. These walls do not present the form a can and do not even approximately resemble a can.

The embodiment of Fig. 5 of document D1 shows a bumper which, in the end spaces 30 which are part of the chassis attachment section 22 of the bumper, comprises a plurality of spaced vertical ribs 38 in addition to the horizontal ribs 20 (see D1: col. 5, lines 34-37). Since these ribs 38, 20 form collapsible energy absorbing elements (see also the commented figure annexed to the examining division's communication dated 7 November 2012), the Board regards these elements as crush cans within the meaning of claim 1.

2.3 The appellant further submits that there is no disclosure in D1 of a first crush can being configured to align with a first vehicle rail and a second crush can being configured to align with a second vehicle rail.

The present patent application D0 simply mentions that "crush cans" are in alignment with rails from the frame of the vehicle (see paragraph [0020] of D0). The application D0 does not, however, describe the first and second vehicle rails with which the walls 50,52,54 shown in Fig. 4 to 6 of D0 (the "crush can" of claim 1) are aligned, neither does D0 specifically show how the walls 50,52,54 align with the hypothetical first and second rails of the vehicle. Considering that the claimed product is a bumper assembly on its own (i.e. the claim is not directed to a bumper assembly mounted on vehicle rails), the disputed features only imply that the crush cans are spaced from the center line of the bumper assembly and, as such, are suitable to be mounted in correspondence of vehicle rails.

This is certainly the fact for the bumper assembly of D1. Moreover, Fig. 2B, referred to by the examining division, clearly shows that the crush cans are aligned with support means for the bumper. Although Fig. 2B refers to a configuration for impact simulation tests, it is clear for the skilled person that the support are in positions corresponding to vehicle rails. In Fig. 5 of D1 the vertical and horizontal ribs 38,20 of the end spaces 30 are clearly arranged in the area 22 which is the "chassis attachment section" of the bumper (see column 4, line 14 of D1).

2.4 The Board concludes from the above considerations that the bumper assembly of claim 1 is known from the prior art disclosed in D1 (Article 54(1) EPC 1973).

Thus, the main request must fail.

3. Second auxiliary request

3.1 Admissibility

According to Article 12(1)(a) RPBA, ex parte appeal proceedings shall be based inter alia on the notice of appeal and statement of grounds of appeal. As an exception to this, Article 12(4) RPBA foresees that the board can hold inadmissible facts, evidence or requests which could have been presented in the first instance proceedings.

In the present case the Board stated in the annex to the summons to oral proceedings that it was questionable whether the auxiliary request should be admitted in the appeal proceedings and gave reasons i support of this view. The Appellant has not challenged this view nor submitted any counter-arguments.

Claim 1 of the second auxiliary request has been amended to include the feature coming from the description that "the spaced walls (50,52,54) are inclined to influence the stiffness and impact characteristics". This feature has not been searched and the word "inclined" has no explicit basis in the originally filed application documents. Moreover, the Appellant argued for the first time in oral proceedings before the Board that "inclined", when referring to the spaced walls, meant that these were inclined with respect to the vertical.

This interpretation of the word "inclined" is totally at odds with the content of paragraph [0021] of D0, which was cited as a basis for the amendment and which suggests to the reader that the spaced walls remain vertical when they define the angles A,B,C with respect to a direction corresponding approximately to the longitudinal extension of the bumper.

Hence the amendments and the new interpretation presented in the oral proceedings before the Board correspond to a new case in appeal. At this point the Board refers to the principles governing ex parte proceedings as set out in G 10/93 (OJ EPO 1995, 172). It is true that, since the judicial examination in ex parte proceedings concerns the stage prior to grant and lacks a contentious nature, the boards are restricted, in their review of the decision under appeal, neither to the examination of the grounds for the contested decision nor to the facts and evidence on which the decision is based. But this absence of restriction does not amount to a positive obligation for the boards to consider any request filed in appeal especially when the requests bring about a new case. In the present case, moreover, it was the appellant of its own volition who, by requesting a decision on the state of the file, decided to interrupt the examination proceedings and thereby to deprive itself of any possibility of making such a new case before the department of first instance.

Under these circumstances, the Board decided to exercise its discretion not to admit the second auxiliary request filed with the statement of grounds of appeal into these appeal proceedings (Article 12(4) RPBA).