T 2391/13 (Mobile communication device/NOKIA) 26-07-2018

1. Main request - claim 1 - Article 123(2) EPC

1.1 In accordance with established case law, the test for compliance with Article 123(2) EPC is whether an amendment is directly and unambiguously derivable from the application as filed.

1.2 The characterising part of claim 1 has been amended to include a reference to two acoustic cavities. The appellant argued that both the embodiment of Figs. 2 to 4 and respectively that of Fig. 5 comprised two acoustic cavities and thus provided support for the characterising part of claim 1.

1.3 The board however considers that the embodiment of Figs. 2 to 4 does not provide a direct and unambiguous basis for the characterising feature of claim 1 because, as rightly pointed out by the examining division, in the description the combined speaker-antenna chamber/cavity is consistently presented as a single chamber/cavity (cf. e.g. paragraphs [0036] and [0039]). This is also consistent with the description of the prior art arrangement shown in Fig. 1, which as regards the speaker, shows the same configuration as Fig. 2. In this respect, the description states that "although the speaker chamber 50 [in Fig. 1] is indicated as a single cavity ..." (cf. col. 6, lines 11-12, underlining by the board). This sentence goes on to state: "multiple cavities around the speaker can be provided ...". However, the description does not disclose this latter possibility in connection with the later-described combined speaker/antenna chamber solution of Figs. 2 to 4, and in any case this reference does not provide direct and unambiguous support for specifically two acoustic cavities as claimed, all the more so considering that claim 1 does not include the limitation in that passage "around the speaker".

1.4 In the letter dated 22 June 2018 and at the oral proceedings the appellant argued that Fig. 2 did indeed disclose two acoustic cavities to the right of the speaker 80. In this respect, an imaginary demarcation line could be drawn between the space under the antenna and the remaining space, with the result that cavity 90 could be seen as two acoustic cavities (which the appellant considered to mean two Helmholtz resonators) in series. Various analogies were drawn between a capacitor, which could be equivalently represented by two capacitors in series, a kitchen/dining room which could be demarcated by a change of floor tiling, or a plastic bottle (a form of acoustic resonator) which could be lengthened by an extra piece of a different colour such that there were recognisably two acoustic cavities in series.

1.5 The board found this line of argumentation to be unconvincing. The skilled person looking at Figs. 2 to 4 would not recognise any demarcation between two portions of the cavity as there is no physical feature, e.g. a change of shape, which could be regarded as a meaningful demarcation line with regard to acoustic resonance. Furthermore, there is nothing in the description which would support such an interpretation. The board notes that if the appellant's argument were accepted, this would equally mean that the cavity 90 in Fig. 2 could be arbitrarily regarded as embracing any number of acoustic cavities in series, an interpretation which the board finds as implausible as two acoustic cavities in series.

1.6 Consequently, the only relevant embodiment for determining compliance with Article 123(2) EPC is that of Fig. 5. However, this detailed embodiment is relatively complex and provides a complete solution to the problem of providing both speaker and antenna resonant cavities without mutual interference. In the board's view, the special structural design of Fig. 5 with regard to the mounting of these components in order to avoid mutual interference is intrinsically bound up with the location and shape of the two acoustic chambers. The isolation of the particular claimed general aspect from this embodiment therefore constitutes in the board's view an unallowable intermediate generalisation. It is further noted that claim 1 embraces any solution involving two or more acoustical cavities constituting an acoustic volume for the speaker where at least one of these cavities constitutes a chamber for the antenna. The special embodiment of Fig. 5 does not provide direct and unambiguous support for such a broad claim.

1.7 The appellant argued that the skilled person would recognise a number of elements of Fig. 5 as being non-essential or not necessary (referring to T 461/05). The board however finds this argument unconvincing for the reasons given above. In the case of such an integrated solution as that of Fig. 5, the skilled person is not in a position to recognise, directly and unambiguously, which features can be deemed non-essential, all the more so as there is no wording in the description of this embodiment directly corresponding to the features of the characterising part of claim 1.

1.8 Consequently, the board concludes that claim 1 of the main request does not comply with Article 123(2) EPC.

2. Auxiliary requests - claim 1

2.1 None of the amendments with respect to claim 1 of the main request have any effect on the issue of compliance with Article 123(2) EPC. This was not contested by the appellant.

2.2 Consequently, claim 1 of each of auxiliary requests 1 to 3 does not comply with Article 123(2) EPC.

3. Conclusion

As there is no allowable request, it follows that the appeal must be dismissed.