T 0166/17 (HAPTIC MONITORING SYSTEM USING MULTIPLE SENSORS / Immersion) 19-12-2019

1. Procedural matters

1.1 In response to the summons to oral proceedings and to the board's communication pursuant to Article 15(1) RPBA, the appellant informed the board that "neither the applicant nor the applicant's representative will attend the oral proceedings scheduled for 19 December 2019". They requested that oral proceedings be conducted in the absence of the applicant's party according to Rule 115(2) EPC and a decision be taken on the file as it stands.

1.2 Oral proceedings serve the purpose of giving a party to the proceedings the opportunity to present its case orally and, if the board considers it appropriate, the purpose of discussing orally any outstanding objections. If a party informs the board that it does not intend to attend the oral proceedings, the board is not obliged to hold oral proceedings in the absence of the party. In such a case, a party has no legitimate interest in pursuing its request for oral proceedings. Rather, under these circumstances and irrespective of whether or not the appellant explicitly maintains or withdraws its request for oral proceedings, it is within the discretion of the board to decide whether the scheduled oral proceedings are to be maintained or to be cancelled, since it cannot be the purpose of Article 116 EPC and Rule 115(2) EPC that a party can oblige a board to hold oral proceedings in its absence (following T 0910/02, Reasons, point 6, T 0663/10, Reasons, point 1.3 and T 0671/12, Reasons, point 2. See also the Case Law of the Boards of Appeal of the EPO, 9th edition 2019, III.C.4.3.2).

1.3 In the communication under Article 15(1) RPBA, objections under, inter alia, Article 123(2) EPC were raised in respect of claim 1 of both requests on file. In deciding not to attend the oral proceedings the appellant chose not to make use of the opportunity to comment at the oral proceedings on any of these objections but, instead, chose to rely on the arguments as set out in the statement of grounds of appeal, which the board duly considered below.

1.4 Under these circumstances holding oral proceedings was considered inappropriate. Hence, the board decided to cancel the oral proceedings and, having considered the merits of the case, was in a position to reach a decision which complied with the requirements of Article 113(1) EPC.

2. The application

The present application pertains to a haptic monitoring system which is capable of generating haptic feedback.

The addressed problem is to provide a method for mutually informing two athletes about their physical performance e.g. during a team sport competition.

The solution as claimed teaches that a haptic generator of each user generates haptic feedback based on a combination of vital physical information (e.g. heart rate) and location of both user.

Main request

3. Amendments

The board holds that claim 1 as presently amended extends beyond the content of the application as originally filed, violating the provisions of Article 123(2) EPC. The reasons therefor are the following.

3.1 Claim 1, in the characterising portion, specifies that each of the two claimed haptic generators are configured to generate haptic feedback based on a combination of the vital physical information and physical location of the first user and the second user.

3.2 Throughout the examining proceedings, the applicant provided Figures 4 and 9 and paragraphs 38 to 41, 46 to 49 and 59 to 64 as basis for these features.

3.3 From these passages, paragraphs 40, 41 and 59 to 64 and Figure 9 appear to come closest to the amended features enlisted above.

3.4 Paragraph 40 teaches, inter alia, that "upon analyzing the data relating to physical locations of each bike and vital statistics of every cyclist, haptic coordinating and enhancing device 410 can instruct cyclist 402 to take the position of cyclist 408 for improving the team performance". Hence, the haptic device 410 instructs one of the cyclists in a very specific manner, i.e. to take the position of another cyclist for improving the team performance. This teaching is much more specific than the features objected to above. The features thus constitute an impermissible intermediate generalisation.

3.5 Paragraph 41 is not suitable as a basis for this amendment because the haptic feedback is based on the collected vital information of the cyclist only, not on the location.

3.6 Paragraphs 61 to 63 and original claims 11, 12, 23 and 24 teach that the haptic signals are generated based on vital information, location and a predefined performance parameter, when a computed performance level does not match with a predefined optimal performance. Differently, present claim 1 does not take a predefined performance parameter or a predefined optimal performance into consideration.

3.7 Paragraph 64 refers to a first and a second haptic feedback, however specifically for instructing the respective user to change current course of action. Claims 11, 12, 23 and 24 and Figure 9 comprise a similar disclosure.

3.8 Paragraph 64 explains further that "(t)he process is able to generate a first haptic cue in response to the first haptic signal and a second haptic feedback and a second haptic cue in response to the first haptic signal and the second haptic signal." This teaching relates to each of the two claimed haptic generators generating haptic feedback based on the two vital informations and two positions. However, it does not disclose that the first and second haptic cues are generated on the first and second device, respectively. Moreover, the two haptic signals, as described, differ from the haptic signals as claimed (see section 3.6 above).

3.9 Original claims 14 and 26 pertain to related features but disclose the different teaching that the first haptic feedback is generated in response to the first haptic signal, whereas the second haptic feedback is generated in response to the first and second haptic signals.

Auxiliary request

4. Amendments

The board holds that claim 1 as amended extends beyond the content of the application as originally filed, contrary to the provisions of Article 123(2) EPC.

4.1 The objections set out in section 3. above apply, mutatis mutandis, to claim 1 of the auxiliary request.

4.2 No basis is apparent for replacing "bike" respectively "cyclist" (paragraph 40) by "user". For example, paragraph 41, which relates to water polo swimmers, does not refer to exchanging positions of swimmers. Hence, the various types of team sports enlisted in the last sentence of paragraph 40, in particular water polo, do not allow for such broadening of the subject-matter claimed.

4.3 Further in this regard, paragraph 64 states "In one embodiment, the process is capable of instructing the first user to take over the second user's position." However, this passage does not relate to team performance and does not specify which device is carrying out this process.