T 1304/16 23-04-2021

1. The appeal is admissible.

2. Main request - admittance (Article 13(2) RPBA 2020)

2.1 In the case in hand, the summons to oral proceedings was notified after the date on which RPBA 2020 entered into force, i.e. 1 January 2020 (Article 24(1) RPBA 2020). Thus, in accordance with Article 25(1) and (3) RPBA 2020, Article 13(2) RPBA 2020 applies to the question of whether to admit the appellant's main request, which was filed after notification of the summons to oral proceedings and is therefore an amendment within the meaning of Article 13(2) RPBA 2020.

2.2 The board raised objections under Article 84 EPC and Article 123(2) EPC for the first time in its communication under Article 15(1) RPBA 2020. In response to this communication, the appellant filed a main request aimed at overcoming these new objections. The board considers this to represent exceptional circumstances within the meaning of Article 13(2) RPBA 2020. Exercising its discretion under this provision, the board thus decided to admit the main request into the appeal proceedings.

3. Main request - added subject-matter (Article 123(2) EPC)

3.1 Claim 1 was amended to specify "determining a subset of available views of the encoded video data having a plurality of views to send to a destination device".

This amendment is to be seen in the context of the further features of claim 1 specifying that two view order index values are non-consecutive but occur immediately after each other in a multiview video coding (MVC) extension descriptor.

3.2 Paragraph [0027] of the application as filed discloses:

"A server device, for example, may provide various services, each of which comprises respective subsets of particular views of multiview video coding video data, where the subset of views of the service may be selected based on the application executed by a client device, capacity of decoders executed by the client device, preferences expressed by the client device, or other selection criteria."

Paragraph [0037] of the application as filed discloses:

"A service generally corresponds to a subset of available views of MVC data. ... In general, a service corresponds to any combination (that is, any subset) of the available views."

3.3 Hence, paragraphs [0027] and [0037] disclose that, in general, any combination, i.e. subset of available views, can be selected.

However, paragraphs [00118] and [00125] disclose that in the particular case of views with non-consecutive view order index values, only those available views can be selected to form part of a subset which are either independently decodable or decodable by reference only to views within the subset. To be specific, the set of views S0, S2, and S4 mentioned in paragraph [00125] is decodable because the I-frame of view S0 at temporal location T0 is used as a reference frame for the P-frame of view S2 at temporal location T0, which is in turn used as a reference frame for the P-frame of view S4 at temporal location T0 (see paragraph [00118]). Thus, this possible subset of available views is decodable because none of the views in the possible subset is predictively coded using a reference view, which is itself not part of the possible subset.

3.4 Therefore, there is no basis in the application as filed for determining arbitrary subsets of available views of encoded video data to send to a destination device. In particular, if these subsets are made up of available views with non-consecutive view order index values, an arbitrary selection of these views can result in a subset which is not decodable at the destination device.

3.5 The board is not convinced by the appellant's argument that the general teaching of paragraph [0037] was not invalidated by the later examples (see point XVII(a) above). Claim 1 specifies that the subset is made up of available views with non-consecutive view order index values. This corresponds to the example of paragraphs [00118] and [00125]. These paragraphs disclose limitations to what is "in general" possible according to paragraphs [0027] and [0037].

Furthermore, the person skilled in the art understands that the inter-view prediction structure disclosed in Figure 6 is the core of any multiview video coding and not merely an example. If there were no prediction between the views, then any view could be coded independently of the other ones and there would be no need for any specific multiview video coding.

Finally, the skilled person reading paragraphs [0027] and [0037] together with paragraphs [00118] and [00125] would derive based on common general knowledge that all subsets of available views have to be decodable. To transmit a non-decodable subset would cause an error at the destination device.

3.6 The board has not been persuaded that the claim dependencies provide any further indication whether or not a subset of views has to be decodable (see point XVII(b) above). The dependent claims only specify in more detail the arrangement of view order index values inside the MVC extension descriptor.

3.7 The appellant's argument that transport over MPEG-2 systems would still work even if on the level of a video coding layer a view for inter-view prediction was missing (see point XVII(c) above) does not apply to claim 1, because the claim only specifies transmitting the data structure containing the MVC extension descriptor, without referring to data transport over MPEG-2 systems.

3.8 The board is not convinced that the term "multiview video coding (MVC) extension descriptor" implies data transport over MPEG-2 systems (see point XVII(d) above). This term can equally refer to an extension descriptor for MVC on a video coding layer. As an example, the data structure "seq_parameter_set_mvc_extension" shown in Table 3 of document D3 describes extensions for a sequence parameter set in case of multiview video coding. This data structure on the video coding layer could be regarded as an MVC extension descriptor.

3.9 In view of the above, the amendment to claim 1 quoted under point 3.1 above has no basis in the application as filed, and thus claim 1 of the main request does not meet the requirements of Article 123(2) EPC.

4. First, second and fifth auxiliary requests - admittance (Article 13(2) RPBA 2020)

4.1 The first, second and fifth auxiliary requests were filed at the same time as the main request. They are, therefore, amendments within the meaning of Article 13(2) RPBA 2020 for the same reasons as set out under point 2.1 above.

4.2 Article 13(2) RPBA 2020 implements the third level of the convergent approach applicable in appeal proceedings (see Supplementary publication 2, OJ EPO 2020, explanatory remarks on Article 13(2), first paragraph, first sentence).

When exercising its discretion in accordance with Article 13(2) RPBA 2020 and deciding whether to admit an amendment made at the third level of the convergent approach, the board is free to use or not use the criteria applicable at the second level of the convergent approach, i.e. as set out in Article 13(1) RPBA 2020 (see Supplementary publication 2, OJ EPO 2020, explanatory remarks on Article 13(2), fourth paragraph; and for example decisions T 989/15, point 16.2 of the Reasons, and T 954/17, point 3.10 of the Reasons).

4.3 Under Article 13(1) RPBA 2020 the board exercises its discretion in view of, inter alia, whether an amendment is detrimental to procedural economy.

4.4 Claim 1 of the first auxiliary request specifies the subset of available views in the same manner as claim 1 of the main request. It further specifies that "a view order index indicates a decoding order of view components in an access unit".

4.5 The board has not been persuaded that the quoted feature of claim 1 of the first auxiliary request specifies that the determined subset of available views is decodable, and thus there could not be a missing reference view (see point XVII(e) above).

The quoted feature only defines the meaning of a view order index. It neither specifies nor implies that the determined subset of available views is decodable.

4.6 Hence, a subset of views as specified in claim 1 of the first auxiliary request does not need to be decodable at the destination device for similar reasons as given with respect to claim 1 of the main request (see point 3.4 above). Therefore, the board would have to discuss the same objection under Article 123(2) EPC as raised against claim 1 of the main request (see section 3 above) for claim 1 of the first auxiliary request.

This would be detrimental to procedural economy.

4.7 The same holds for claim 1 of each of the second and fifth auxiliary requests which defines the meaning of a view order index by reference to Annex H of ITU-T H.264/MPEG-4, Part 10, Advanced Video Coding. In this respect, the appellant has not provided further arguments (see point XVII(e) above).

4.8 In view of the above, the board exercised its discretion under Article 13(2) RPBA 2020 and decided not to admit the first, second and fifth auxiliary requests into the appeal proceedings.

5. Third auxiliary request - admittance (Article 13(2) RPBA 2020)

5.1 The third auxiliary request was filed during the oral proceedings before the board. Hence, it is an amendment within the meaning of Article 13(2) RPBA 2020.

As explained in point 4.2 above, the board, when exercising its discretion under Article 13(2) RPBA 2020, is free to use or not use the criteria set out in Article 13(1) RPBA 2020.

5.2 According to Article 13(1) RPBA 2020, the onus is on the appellant to demonstrate that any amendment to a patent application, prima facie, overcomes the issues raised by the board.

5.3 During the oral proceedings, the appellant submitted that the amendments to claim 1, inter alia, aimed at specifying that the data structure including the multiview video coding (MVC) descriptor was transmitted on a transport layer of an MPEG-2 transport or program stream. Therefore, the issue raised by the board that the MVC descriptor could be understood as being part of a video coding layer (see points 3.7 and 3.8 above) had been overcome.

5.4 However, claim 1 only specifies "transmitting the data structure to the destination device", without mentioning any specific stream or layer on which this takes place.

Hence, claim 1 does not explicitly state that the data structure including the MVC extension descriptor is transmitted on a transport layer of an MPEG-2 transport or program stream.

5.5 The appellant argued that the transmission of this data structure over an MPEG-2 transport or program stream was implicit because claim 1 specified that "the data structure comprises a program map table". The term "program map table" used in this feature was specific to MPEG-2 transport and implied, for the skilled person, a transport over an MPEG-2 transport or program stream (see point XVII(f) above).

The board is not convinced by this argument, because the term "program map table" is not specified with reference to a particular standard.

5.6 Hence, claim 1 neither explicitly nor implicitly specifies that the data structure including the MVC extension descriptor is transmitted on a transport layer of an MPEG-2 transport or program stream.

Therefore, the appellant has not demonstrated that the amendments, prima facie, overcome an issue raised by the board (see points 3.7 and 3.8 above).

5.7 In view of the above, the board exercised its discretion under Article 13(2) RPBA 2020 and decided not to admit the third auxiliary request into the appeal proceedings.

6. Fourth auxiliary request - admittance (Article 13(2) RPBA 2020)

6.1 The fourth auxiliary request was filed during the oral proceedings before the board. Hence, it is an amendment within the meaning of Article 13(2) RPBA 2020.

As explained in point 4.2 above, the board, when exercising its discretion under Article 13(2) RPBA 2020, is free to use or not use the criteria set out in Article 13(1) RPBA 2020.

6.2 According to Article 13(1) RPBA 2020, the onus is on the appellant to demonstrate that any amendment to a patent application, prima facie, does not give rise to new objections.

6.3 Claim 1 of the fourth auxiliary request specifies: "transmitting the data structure to the destination device at a transport level in the MPEG-2 bitstream".

Claim 1 further specifies "the encoded video data being sent in an MPEG-2 bitstream".

6.4 The board agrees with the appellant that these features of claim 1 together specify that the data structure and the encoded video data are transmitted in the same MPEG-2 bitstream (see point XVII(g) above).

6.5 However, the MPEG-2 bitstream can be a packetised elementary stream.

The expression "at a transport level in the MPEG-2 bitstream" (emphasis added by the board) is thus unclear, because the transport level syntax elements, i.e. the elements forming an MPEG-2 transport or MPEG-2 program stream, are added on top of a packetised elementary stream but are not part of it or "in" it.

Hence, claim 1, prima facie, gives rise to a new clarity objection (Article 84 EPC).

6.6 Therefore, the board exercised its discretion under Article 13(2) RPBA 2020 and decided not to admit the fourth auxiliary request into the appeal proceedings.

7. Conclusion

Claim 1 of the main request does not meet the requirements of Article 123(2) EPC. The first to fifth auxiliary requests were not admitted into the appeal proceedings. Since none of the appellant's requests is allowable, the appeal must be dismissed.