T 1448/16 14-01-2021
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Method of and implement for milking dairy animals
Grounds for opposition - insufficiency of disclosure (no)
Sufficiency of disclosure - main request (yes)
Novelty - auxiliary request (no)
Inventive step - main request (yes)
I. The appeal lies from the interlocutory decision of the opposition division of the European Patent Office, posted on 22 April 2016 rejecting the opposition filed against European patent No. 1982584 pursuant to Article 101(2) EPC.
II. The opposition division held that the patent and the invention to which it related met the requirements of the EPC, having regard inter alia to the following pieces of evidence:
D1: US 5 782 199 A
D7: US 2002/108584 A1
D10: Melin, M: "Optimising Cow Traffic in Automatic
Milking Systems - with Emphasis on Feeding
Patterns, Cow Welfare and Productivity",
Doctoral thesis, Swedish University of
Agricultural Sciences, 2005, Uppsala
D11: De Jong, W. et al: "Survey of Management
Practices of Farms Using Automatic Milking
Systems in North America", Paper 033018 presented
at 2003 ASEA Annual International Meeting,
27 July 2003 (2003-07-27) - 30 July 2003
(2003-07-30)
D13: RODENBURG, J: "Robotic Milkers: What, Where ...
and How Much!!??", Dairy Production Systems
Program Lead, Ontario Ministry of Agriculture
and Food, Ohio Dairy Management Conference,
16 December 2002 (2002-12-16) - 17 December 2002
(2002-12-17), pages 1-18
III. The appellant opponent lodged an appeal, received on 15 June 2016 against this decision and simultaneously paid the appeal fee. The statement setting out the grounds of appeal was received on 31 August 2016.
IV. In preparation for oral proceedings the board issued a communication pursuant to Article 15(1) RPBA dated 13 November 2019 setting out its provisional opinion on the relevant issues. Oral proceedings were duly held on 14 January 2021.
V. The appellant opponent requests that the decision under appeal be set aside and that the European patent No. 1982584 be revoked.
VI. The proprietor as respondent requests that the appeal be dismissed, i.e. that the patent be maintained as granted and that the rejection of the opposition be confirmed (as main request), or that the patent be maintained in an amended form on the basis of the first to fourth auxiliary requests filed with the response to the grounds of appeal dated 13 March 2017, re-filing earlier requests.
VII. Independent claim 1 according to the main request (patent as granted) reads as follows:
"Method of milking dairy animals (MA1, MA2, MA3) wherein the dairy animals are milked by a milking implement (MR) and an access device (GT1, GT2, GT3) is provided for allowing or not allowing a dairy animal access to a waiting area (WA) for the milking implement, wherein the access device (GT1, GT2, GT3) has at least a first and a second access state, which access states have mutually different accesses for the dairy animals to the waiting area, and wherein the method comprises the steps of:
a) providing the first access state of the access device (GT1, GT2, GT3);
b) identifying by means of an animal identification system (Al) an animal which is milked by the milking implement;
c) determining a milking implement processing data on the basis of the identified animals;
d) comparing the milking implement processing data with a criterion; and
e) providing the second access state of the access device (GT1, GT2, GT3) when the milking implement processing data meets the criterion,
wherein the first access state is a closed access state,
wherein the second access state is an access state which is open at least in a direction into the waiting area, characterised in that
the criterion is that one or more specific dairy animals which were present in the waiting area in the closed access state of the access device have been milked.
The other independent claim 7 has corresponding features to claim 1, albeit formulated in terms of an apparatus for milking dairy animals with a control device.
VIII. The appellant argued as follows:
The subject-matter of claim 1 of the main request is insufficiently disclosed. It moreover lacks novelty over the disclosure of document D7, and does not involve an inventive step over D7 alone, or starting from the teachings of each of D1 or D7 in combination with common general knowledge, as exemplified by D10 or D13.
IX. The respondent argued as follows:
The subject-matter of claim 1 of the main request is sufficiently disclosed, novel and involves an inventive step.
1. The appeal is admissible.
2. Background
The invention concerns a method of milking dairy animals, wherein an access device controls access of the dairy animals to a waiting area for the milking implement, e.g. a milking robot. The access device has at least a first, closed, and a second, open access state, wherein the second access state is open at least in a direction into the waiting area. Thereby, a free access to the milking implement can be offered again once at least a single animal from the waiting area has been milked (patent in suit, paragraph 008).
A corresponding implement for milking dairy animals with a control device is also claimed.
3. Claim interpretation
3.1 Before the board can decide on sufficiency, novelty and inventive step, it must interpret the term "open" in the feature "wherein the second access state is an access state which is open at least in a direction into the waiting area".
The invention defined in claim 1 of the main request is directed to keeping the access device for the waiting area in a first, closed access state as long as none of the animals in the waiting area has been milked, which is followed by a second, open access state. The meaning of the term "open" is therefore crucial.
3.2 According to the established case law, terms used in patent documents should be given their normal meaning in the relevant art, unless the description gives them a special meaning (CLBA, 9th edition 2019, II.A.6.3.3).
The appellant did not suggest that "open" has a special meaning in the technical field of robotic milking, and the board is not convinced that this would be the case. Within a general technical context, the normal meaning of "open" is being in a position or adjustment to permit passage, i.e. not shut or locked (see Merriam-Webster). This definition does not refer to a selection, nor does it restrict passage to previously met criteria. Thus, the board concludes that the term "open" (as well as the term "closed") in common technical usage is absolute and unconditional. That is confirmed by the patent in suit, where an open access state is equated with free access or free passage (paragraph 8: "for example an open access state, so that ... a free access to the milking implement will be offered again"; paragraph 9: "second access state is an open state. It is thus possible ... to have the control device switched to a free passage for the dairy animals"). The term "free" used in these two examples is also absolute and unconditional in common technical usage, since its relevant meaning is not obstructed, restricted or impeded (see Merriam-Webster).
3.3 This conclusion is not altered by the appellant's reference to paragraphs 0008, 0010-0012 and 0020 of the description (paragraph 0008: "the second access state, for example an open access state"; paragraph 0010: "second access state (for example an opened state)"; paragraph 0011: "an access state (for example another access state), wherein the access device provides selective access"; paragraph 0012: "before the access state changes in such a manner that, for example, a free animal traffic ... is possible again"; paragraph 0020: "to provide another access state, wherein for example, a free access state"). The board accepts that the expression "for example" in paragraphs 0008, 0010, 0012 and 0020 casts doubt on the nature of the second access state described in these paragraphs, since an open access state thereby seems to become optional. However, "for example" in these passages only refers to the second access state per se, while no special meaning is given to the term "open". At most, these passages relate to embodiments in which the second access state is not an open access state with free animal traffic. Due to the feature "the second access state is an access state which is open (at least in a direction into the waiting area)" in claim 1 of the main request, such embodiments do not fall under the scope of that claim. By the same token, the selective access state according to paragraph 0011 indeed does not have to be a further access state in addition to the first, closed and second, open access states mentioned in the preceding paragraph, but such an embodiment then does not fall under the scope of claim 1 of the main request.
3.4 Summarizing the above, the board construes the feature "the second access state is an access state which is open (at least in a direction into the waiting area)" in claim 1 in the sense that any dairy animal must be allowed into the waiting area. That interpretation, which the board will apply in the subsequent assessment of sufficiency, novelty and inventive step, excludes that the second, open access state provides a selective access only for certain animals. Claim 1 does, however, not exclude, that such a selective access might be provided in addition to and coexisting with the claimed first and second access states, e.g. as a third access state.
4. Disclosure of the invention
The appellant opponent disputes the decision's finding that the patent discloses the invention in a manner sufficiently clear and complete for it to be carried out by the skilled person (Article 100(b) EPC). In its communication, the board was of the preliminary opinion that the appellant's objection is not convincing. The board presented the following preliminary view (see paragraph 2.2 of the communication):
"2.2 The objection against sufficiency of disclosure seems to be based on the assumption that (only) paragraph 20 provides a sufficiently clear and complete disclosure of the invention (statement of grounds, page 37, second paragraph). While the board shares the view that paragraph 20 provides an enabling teaching, the board cannot see the alleged difference between the terms "to release the access to the waiting area" and "access state which is open", since both terms seem to be synonymous (see paragraph 2.1). Turning to the "full scope" argument, an objection of lack of sufficiency of disclosure presupposes that there are serious doubts, substantiated by verifiable facts. No such facts seem to be presented in the statement setting out the grounds of appeal (page 37). The board is of the preliminary opinion that a skilled person will construe the feature "milking implement processing data" as any data suitable for determining whether an animal in the waiting area has been milked."
As the appellant refrained from further comment, the board confirms its provisional view and thus finds that the patent discloses the invention defined in claim 1 of the main request in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art, Article 100(b) EPC. The above reasoning also applies to independent claim 7 mutatis mutandis.
5. Novelty
The appellant opponent disputes the decision's finding that the subject-matter of independent claims 1 and 7 of the main request is novel over document D7, because that document does not disclose step e), i.e. providing an access state which is (unconditionally) open at least in a direction into the waiting area.
5.1 D7 undisputedly discloses a method and an arrangement for milking dairy animals wherein the dairy animals are milked by a milking implement (milking robot 5) and an access device (entrance gates 16, 17, 18) is provided for allowing or not allowing a dairy animal access to a waiting area (waiting area 6) for the milking implement, wherein the access device has at least a first and a second access state, which access states have mutually different accesses for the dairy animals to the waiting area, and wherein the method comprises the steps of:
a) providing the first access state of the access device;
b) identifying by means of an animal identification system (reading units 13, 14) an animal which is milked by the milking implement;
c) determining a milking implement processing data on the basis of the identified animals;
d) comparing the milking implement processing data with a criterion; and
e) providing the second access state of the access device when the milking implement processing data meets the criterion,
wherein the first access state is a closed access state,
wherein the criterion is that all specific dairy animals, which were present in the waiting area in the closed access state of the access device and ready to be milked, have been milked (reference numerals apply to shed shown in figure 1).
The appellant asserts that the access state of the entrance gates for admitting animals into the waiting area, which is provided when all the animals in the waiting area have been milked or have left the waiting area and the milking parlour, is an open access state (which is open at least in a direction into the waiting area).
5.2 As the decision on novelty hinges on this feature, the board must examine the nature of that access state in D7, and in particular whether it is unconditional in the sense that any dairy animal is allowed into the waiting area. In the board's view, that is not the case for the following reasons:
5.2.1 In a dairy farming shed with a milking robot, dominant animals tend to push away less dominant animals in order be the first to enter a milk box where the milking robot is located. That leads to an undesired increase of waiting time for the less dominant animals, see paragraph 0004 of D7. Further to that, jostling behaviour of a dominant animal in the vicinity of a gate negatively influences circulation, since these animals are the last to gain access through that gate, see paragraphs 0007 and 0009. In order to mitigate the negative influence of dominant or jostling animals, the method and arrangement for milking dairy animals according to D7 takes into account hierarchic order and preferably also jostling behaviour within the herd as criteria for admitting animals to the waiting area. This is implemented by providing the memory of a central unit with data about the hierarchic order and the jostling behaviour (as far as available), and by controlling operation of the entrance gates with the aid of that data, see paragraphs 0008 and 0009. In the embodiment of figure 1, the central unit is enabled to control the opening of the entrance gates with the aid of data regarding the hierarchic order, the jostling behaviour and the history of the animal to be milked, see paragraph 0048.
5.2.2 The board concurs with the appellant that the control according to paragraph 0048 of D7 is based on secondary criteria (statement setting out the grounds of appeal, page 11, fourth paragraph: "controlled opening taking account of suitable data"; page 12, first and second paragraphs: "the option in D7 to check a second criterion before opening a gate", "a second criterion disclosed in D7"; page 26, penultimate paragraph: "D7 paragraph [0048] includes an additional data check that would not be needed for a completely open gate"). Due to these secondary criteria, the opening of the entrance gates in paragraph 0048 of D7 is selective. It is therefore immaterial whether paragraph 0011 of the patent in suit also mentions access for animals which meet a particular criterion, since that passage does not relate to an open access state, either, see the interpretation of the term "open" in section 3 of the present decision. As the first criterion mentioned in paragraph 0048 of D7 already contradicts an open, unrestricted access, the board does not need to investigate the appellant's argument that the additional second check (of milking data or milking history) may be considered as an additional feature which can be ignored during the assessment of novelty (grounds of appeal, page 11, fourth paragraph; page 12, second paragraph).
Furthermore, and contrary to the appellant's assertion, the board is not convinced that paragraph 0048 of D7 introduces the use of secondary criteria merely as a possibility (notice of appeal, page 12, fifth paragraph). Instead, it follows from the linguistic structure of the statement "With the aid of data regarding the hierarchic order ... and data regarding the history of the animal to be milked, the central unit 7 is enabled to control the opening of the entrance gates" that hierarchic order and milking history are prerequisites, and therefore mandatory criteria for controlling the opening of the entrance gates. Otherwise, the central unit would not be enabled to control the opening of these gates ("With the aid of ..., the central unit 7 is enabled..."). The statement "it is possible for the central unit 7 not to allow animals to enter the waiting area" in paragraph 48 does not lead to a different conclusion, since not allowing animals to enter, i.e. access denial, refers to a closed access state of the entrance gates. In claim 1 of the main request, that only relates to the first access state according to feature a).
Summarizing the above, paragraph 0048 does not disclose unconditional access, and thus, does not refer to a second access state which is open at least in a direction into the waiting area. Therefore, the board must now investigate whether other parts of D7 disclose such an open access state.
5.2.3 As pointed out by the appellant, paragraph 0052 of D7 discloses that entrance to the waiting area is released when all the animals admitted to the waiting area have been milked or left the waiting area and the milking parlour. However, with regard to the term "released" in that paragraph, it is immaterial whether the terms "open" and "release" might be used interchangeably in paragraphs 0009 and 0020 of the patent in suit. While it is established case law that a patent document may be its own dictionary, that effect does not extend beyond that document, and therefore cannot restrict the interpretation of another prior art document or will not necessarily confer the same meaning on the term in another document. Instead, D7 must also be considered as its own - albeit separate - dictionary, and thus, the term "released" in D7 must be interpreted solely in the light of that document. Due to the definite articles in the terms "the animals admitted", "the waiting area 6", "the milking parlour" and "the reading units 13 and 15" in paragraph 0052, that paragraph is linked to paragraphs 0042 and 0043, where a herd of animals, a milking parlour, a waiting area and reading units are introduced with reference to figure 1 in the conventional manner with the indefinite article. Therefore, a skilled reader will not consider paragraph 0052 in isolation, but as an integral part of the embodiment according to figure 1, where the term "released" in paragraph 0052 relates to a return to the access state according to paragraph 0048. For the reasons given in paragraph 5.2.2 of the present decision, that access is dependent upon secondary criteria, and thus, conditional.
By the same token, the definite articles in the terms "the milking robot", "the further area" and "the entrance gate" in paragraph 13 links that passage of D7 to the preceding paragraphs of the general part of the description, and particularly to the gate control exerted by a central unit with data about the hierarchic order and the jostling behaviour according to paragraphs 0008 and 0009. This is reinforced by the explicit reference to an "arrangement according to the invention" in paragraph 0013, which according to paragraph 0004 will take into account the hierarchic order within the herd. A similar disclosure can be found in claim 8 of D7.
5.2.4 For these reasons, D7 does not disclose that the second access state, which is provided according to step e) when the milking implement processing data meets the criterion, is an (unconditional) open access state which is open at least in a direction into the waiting area (for any dairy animal).
5.3 As D7 does not disclose all features of claim 1, its subject-matter is novel, Article 54 EPC. The above reasoning also applies to independent claim 7 mutatis mutandis.
6. Inventive Step
The appellant opponent disputes the decision's finding that the subject-matter of claim 1 of the main request involves an inventive step starting from D7 or D1.
6.1 It is common ground that document D7 forms a suitable starting point for assessing inventive step.
The appellant identifies two ways, in which the method of claim 1 and system of claim 7 could be obtained, when starting from the disclosure of D7. Either the selective access state of D7, which depends on hierarchic order, had to be removed, leaving only the criterion of paragraph 0052 (all milkable cows in the waiting area are milked) for unconditionally releasing the entry gates for any animal. Or the access scheme system of D7 had to be complemented by a further, unconditional open access state, which could be chosen by a user as an alternative option to the selective access state. The appellant suggests that a skilled person would do both in order to provide a simplified, less complex access scheme, e.g. for small herds and a sufficient number of entrance gates, where jostling is not a problem.
The board must therefore now examine whether the skilled person would as a matter of obviousness provide a free access state for all animals in the system of D7 in order to arrive at a simpler, less complex method of milking dairy animals
6.2 In accordance with established jurisprudence, the boards apply the "could-would approach". This means asking not whether the skilled person could have obtained the invention, but whether he would have done so in the hope of solving the underlying technical problem, see CLBA, 9th Edition 2019, I.D.5. In the present case, while a skilled person could have provided a second, open access state in D7, the board is not convinced that he would have done so. The reasons are the following:
6.2.1 The decision held, as also maintained by the respondent-proprietor, that the focus in D7 lies on the problem of dominant animals, which are trying to be the first to gain access to the milking implement or to dominate first the other animals present in the waiting area before going to the milking implement.
Disregarding the core problem of D7 and removing its proposed solution - selective access - would not be an obvious option for a skilled person, who wants to simplify the method of D7. The teaching of D7 would rather prevent the skilled person from doing this.
Adding a second access state, which is unconditionally open at least in a direction into the waiting area and can be selected by a user as an alternative to the then "third" selective access state of paragraph 0048, would also mean adding considerable complexity to the method of D7. A person skilled in the art would therefore not obviously embrace this approach in order to solve the above problem of simplifying the method of D7.
6.2.2 The board shares the appellant's assessment of the common general knowledge in robotic milking according to which the skilled person knows that it is desirable for cow welfare reasons to minimise crowding in the waiting area by prioritizing the animals therein. See D10, page 11, first paragraph, and page 40, third paragraph. However, there is no access device before the waiting area in D10, since control gates GC are provided in that document only between the passage area PA and the feeding area, but not at the entrance to the waiting area WA (page 11, last paragraph: "CGs at the entrance to the feeding area"; page 12, first paragraph: "In the present study, the waiting area in front of the MU was open"; page 14, second paragraph: "open waiting area"; figure 1). Therefore, at most, D10 would incite the skilled person to dispense with any access device for allowing or not allowing a dairy animal access to the waiting area.
6.2.3 The board also accepts that it is common practice to urge cows that are overdue for milking into a waiting area in order to force them to go to the milking robot. See in particular D11, page 3, last paragraph and D13, page 3, penultimate paragraph. However, this common practice can be implemented with the existing control logic of D7, since data regarding the milking history of the animal is already used for selectively allowing access to the waiting area (see paragraphs 0048 and 0050, according to which data regarding the history of the animal will be understood as relating to its milking history). Therefore, the system described in paragraph 0048 of D7 will admit all cows sent to the waiting area, since their specific milking history seems to prompt the central unit to prioritize these animals. Paragraph 0052 of D7 does not lead to a different conclusion, since it does not disclose a second, open access state, see paragraph 5.2.3 of the present decision.
6.2.4 Furthermore, D13 discloses an arrangement with two one-way gates for providing free access to the waiting area (figure 4a: "holding area"; page 7, first paragraph). It could be argued that the skilled person aiming at a simpler method of milking dairy animals could have arrived at the claimed method by modifying D7, i.e. by replacing the controlled and selective access according to paragraph 0048 with these one-way gates of D3.
The board agrees with the respondent proprietor that the skilled person would not do so, since controlled and selective access which takes into account data regarding the hierarchic order lies at the core of the invention according to D7 (paragraph 0004: "By taking into account, according to the invention, the hierarchic order"; claims 1 and 8: "memory (9) adapted to contain per animal data in relation to the hierarchic order", "the operation of at least one of the gates being controlled with the aid of data from the memory (9)"). This is underlined by the explicit reference to an "arrangement according to the invention" in paragraph 0013 of D7, which according to paragraph 0004 will take into account the hierarchic order within the herd. Thus, dispensing with this fundamental concept of D7 goes well beyond the skilled person's limited skills of abstraction. It is therefore immaterial whether paragraph 0012 of D7 might prompt the skilled person not to consider data regarding jostling behaviour due to the provision of a waiting area before the milking robot.
The preselection gate in D13 does not lead to a different conclusion, since such a gate prevents cows ineligible for milking from entering the waiting area (page 7, first paragraph: "A pre-selection gate at the entrance to the holding area..."). Thus, the preselection gate only provides selective access to the waiting area.
6.2.5 Summarizing the above, the skilled person would neither be motivated by the common general knowledge to dispense with controlled access based on hierarchic order of the animals, as described in paragraph 0048 of D7, in an obvious manner, nor to provide a second open access state as a further option.
6.3 In their statement setting out the grounds of appeal, the appellant also argued that the subject-matter of claim 1 of the main request does not involve an inventive step over document D7 alone, or starting from D1 in combination with the common general knowledge e.g. confirmed by D13. In its communication, the board was of the preliminary opinion that these lines of attack are not convincing. The board presented the following preliminary view (see paragraphs 4.1 and 4.2 of the communication):
"4.1 D7 alone
The board does not share the appellant's view that D7 would disclose "all of the technical features of claim 1 and an additional data check". The "additional data check" renders the access selective, such that D7 does not seem to disclose a second access state which is open at least in a direction into the waiting area (see paragraph 2.1).
4.2 D7 (or D1) combined with common general knowledge
It is common ground that cows which do not attend the milking robot voluntarily will need to be fetched by the farmer and brought to a holding pen for milking (paragraph 6 of the patent; documents D9, D11, D13 cited by the appellant).
Assuming, arguendo, that the skilled person would use the arrangement according to paragraph 52 of D7 in the above situation (i.e. use waiting area 6 of D7 as holding pen), such a combination still does not lead to a second access state which is open at least in a direction into the waiting area. The reason is that the functions of the arrangement such as opening of the entrance gates 16-18 still seem to be controlled by central unit 7 (D7, paragraph 43 and 48). Thus, access to the waiting area still seems to be selective (see paragraph 3.5).
By the same token, herding lazy cows which do not present themselves to the milking robot in waiting area 2 of D1 also does not seem to disclose a second access state which is open at least in a direction into the waiting area (see paragraph 3.1)."
As the appellant refrained from further comment, the board confirms its provisional view and thus finds that the subject-matter of claim 1 of the main request is not rendered obvious by these documents.
6.4 From the above it follows that a skilled person will not arrive at the subject-matter of claim 1 in an obvious manner. Therefore, claim 1 of the main request involves an inventive step, Article 56 EPC. This reasoning also applies to independent claim 7 mutatis mutandis.
7. Request for amendment of the description
7.1 The appellant requests that parts of the description which are inconsistent with the board's interpretation of a second, open access state, be deleted from the description. In particular, they refer to the terms "for example" in paragraphs 8, 10, 11 and 20.
7.2 The board does not endorse the appellant's view according to which the requested deletions would be occasioned by a ground of opposition, namely sufficiency, as the broad interpretation of "open" would not be properly supported. As already pointed out in paragraph 3.3 of the present decision, the expression "for example" in these paragraphs only refers to the second access state per se, while no special meaning is given to the term "open". At most, these passages relate to embodiments in which the second access state is not an open access state with free animal traffic. Such embodiments do not fall under the scope of claim 1 of the main request. Furthermore, if the selective access state according to paragraph 0011 of the patent replaces the open access state, such an embodiment also does not fall under the scope of the claim 1. None of these passages therefore can be problematic for sufficiency, since they do not pertain to the invention defined in claim 1 of the main request.
7.3 As none of the grounds of opposition invoked by the appellant against the main request was successful, in the present case, the board cannot force the respondent-proprietor to make amendments to the description. The appellant's request for such amendments therefore must be rejected.
8. In conclusion the board finds that the appellant's contentions against the patent are without merit.
In particular, the patent discloses the invention defined in claims 1 and 7 of the main request in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art, Article 100(b) EPC. Furthermore, the subject matter of claims 1 and 7 of the main request is novel and involves an inventive step in the light of the cited prior art, Article 100 (a) EPC.
The board thus confirms the decision under appeal.
For these reasons it is decided that:
The appeal is dismissed.