T 0668/17 27-10-2021

1. The appeal is admissible.

2. Request for remittal of the case to the examining division for further prosecution (Article 11 RPBA 2020)

2.1 Article 11 RPBA 2020 prescribes that the board "shall not remit the case to the department whose decision was appealed for further prosecution, unless special reasons present themselves for doing so".

2.2 The appellant argued that the case should be remitted to the examining division because the assessment of inventive step hinged on the disclosure of the newly introduced document D5 which was not clear. In particular, its machine translation was opaque. Only a remittal of the case to the first-instance department would provide the appellant with sufficient opportunity to tackle this situation. Thus, there were special reasons within the meaning of Article 11 RPBA 2020 (see point XV(a) above).

2.3 The board is not convinced by the appellant's arguments because the only passage cited by the appellant as being allegedly unclear in documents D5 and D5T was paragraph [0028]. However, this paragraph only sets out a further option for specifying a distance parameter E. This further option does not invalidate the remaining disclosure of documents D5 and D5T on how the distance parameter E is set, transmitted and received. Hence, the particulars of this further option cannot be decisive for the assessment of novelty and inventive step.

Therefore, the board finds that the relevant parts of documents D5 and D5T are clear enough for the board to examine novelty and inventive step.

2.4 Additionally, the board notes that the application is already in its fourteenth year after filing. It is in the interest of the public to avoid any further delays and bring the proceedings to a close.

2.5 In view of the above, the board does not remit the case to the examining division for further prosecution.

3. Admittance of the main request and auxiliary requests 1 to 5 into the proceedings (Article 13(2) RPBA 2020)

The main request and auxiliary requests 1 to 5 were filed by the appellant after notification of a summons to oral proceedings. The board accepts that the filing of these requests was a legitimate reaction to new prior-art document D5 introduced by the board in its communication under Article 15(1) RPBA 2020. The board is satisfied that this constituted exceptional circumstances within the meaning of Article 13(2) RPBA 2020 and so decided to admit these requests into the proceedings. The same reasoning is true for the auxiliary request labelled "AUX2a" filed by the appellant during oral proceedings. Consequently, the board also admitted this request into the proceedings under Article 13(2) RPBA 2020.

4. Main request - novelty (Article 54 EPC 1973)

4.1 Document D5 discloses, using the wording of claim 1 of the main request, a method in a three-dimensional video system for creating a data stream comprising a video stream of three-dimensional image (see Figure 2: "C"; Figure 3: "MPEG"; see also paragraph [0030] of document D5T: "encoding image data C supplied from the stereo encoding part 23"),

the data stream comprises a graphics data stream allowing to form three-dimensional graphics data, the graphics data stream consisting of segments (see Figure 3: dashed parts),

and the method comprises:

forming the graphics data stream comprising at least a first object definition segment and a second object definition segment (see Figure 3: first and second dashed parts; see also paragraph [0030] of D5T: "the subtitles data D supplied from the subtitles generating part 24, and the distance parameter E"; further reference is made to paragraph [0031] of D5T: "The subtitles data D and the distance parameter E are arranged at the next"),

the first object definition segment comprising a two-dimensional graphics object (see Figure 2: "D") and

the second object definition segment comprising information (see Figure 2: "E") so related to the two-dimensional graphics object that it allows to obtain the three-dimensional graphics data (see D5T, paragraph [0034]: "The subtitles data D are deform(broken bar)transformed into the right channel way-to-use-characters curtain data D1 and the left channel way-to-use-characters curtain data D2"; paragraph [0046]: "the subtitles deformation(broken bar)transformation part 43 performs deformation(broken bar)transformation processing which gives appropriate parallax with respect to the subtitles data D so that the subtitles data D may position at (Distance set with distance parameter E) predetermined distance with respect to a user within the display screen of the three-dimensional-display apparatus 45") for overlaying on the three-dimensional image (see Figure 6: 62; Figure 7: 62; see also paragraph [0035] of D5T: "The three-dimensional-display apparatus 45 acquires the superimposition data of a stereo moving image and the right channel way-to-use-characters curtain data D1, and the left channel way-to-use-characters curtain data D2 from a display control part 44, It displays on the display screen")

by combining at least first and second data sequences (see Figure 4: 43; see also paragraph [0045] of D5T: "The subtitles data D and the distance parameter E which were isolate(broken bar)separated are supplied to the subtitles deformation(broken bar)transformation part 43"; paragraph [0034]: "The subtitles deformation(broken bar)transformation part 43 performs a predetermined image conversion process with respect to the subtitles data D based on the distance parameter E supplied from demultiplexer 41") obtained and separately outputted by a decoder (see Figure 4: 41) from the first and second object definition segments, respectively (see paragraph [0033] of D5T: "Demultiplexer 41 ... separates the data stream F supplied from the encoding system 11 (FIG. 2) in encoding image data C, and the subtitles data D and the distance parameter E. ... The subtitles data D and the distance parameter E which were isolate(broken bar)separated are supplied to the subtitles deformation(broken bar)transformation part 43").

4.2 The appellant argued that document D5 disclosed a format in which the subtitle data D and the distance parameter E were arranged next to each other and in which the distance parameter E was represented by a special code.

In contrast, claim 1 required a graphics data stream consisting of segments. A first object definition segment comprised a two-dimensional graphics object. A second object definition segment comprised information so related to the two-dimensional graphics object that it allowed obtaining three-dimensional graphics data for overlaying on the three-dimensional image.

The format disclosed in document D5 including parts for the subtitle data D and the distance parameter E did not anticipate a separation of these data elements into segments. The capacity of a segment was much larger than what was provided with the special code specified in document D5. This meant that a depth map could be used instead of a mere distance parameter (see point XV(b) above).

4.3 The board does not find these arguments persuasive. It interprets the term "segment" in a broad manner as a part of a data stream. Without specific context, for example, the mention of a video coding or video transmission standard, the board sees no reason to interpret this term more narrowly, for example, to imply a specific data structure or size. The board is thus of the opinion that the two shaded parts of the data stream depicted in Figure 3 of document D5 can be regarded as two segments. Since these parts represent the subtitle data and the distance parameter E, respectively, as set out in paragraph [0031] of document D5T, they can be regarded as "object definition segments".

4.4 In view of the above, the board finds that the subject-matter of claim 1 lacks novelty over the disclosure of document D5 (Article 54 EPC 1973).

5. Auxiliary request 1 - inventive step (Article 56 EPC 1973)

5.1 Claim 1 of auxiliary request 1 differs from claim 1 of the main request in that it further specifies that the graphics data stream consists of graphics data in segments of the following segment types:

- presentation composition segment for composing a screen that can be synchronised with a moving image and defining appearance of a graphics display on a graphics plane

- window definition segment for defining an area on the graphics plane

- palette definition segment for defining a palette used for colour conversion

- object definition segment for defining a graphics object

- end of display segment indicating that transmission of the graphics data is complete

5.2 It is common ground that document D5 may be considered the closest prior art for the assessment of inventive step of the subject-matter of claim 1.

5.3 It is also common ground that document D5 does not disclose segments of all the types identified under point 5.1 above.

5.4 The appellant argued that, in view of these features, the expression "object definition segment" could no longer be interpreted as merely referring to a part of a data stream defining an object. The skilled person would have recognised the list of segment types specified in claim 1 as the list of segment types defined in the 2D Blu-ray standard. This meant that all the properties of these segments were implied in the claim and applied in particular to the first and second object definition segments. Therefore, these object definition segments also had to be regarded as distinguishing features (see point XV(c) above).

5.5 The board is not convinced that the expression "object definition segment" is to be interpreted as an object definition segment within the meaning of the 2D Blu-ray standard. It is common ground that Figure 7A of document D3 shows the content of an object definition segment according to the Blu-ray standard. According to this figure, an object definition segment contains an object identifier and an object data fragment. This object identifier maps to a location in an object buffer in which the graphics objects are stored (see D3, Figure 13 and Figure 28: 15). However, according to the application at issue, data of the second object definition segment is not decoded into an object buffer feeding a graphics plane but into a depth map buffer feeding a depth plane (see Figure 3 of the application). Hence, the expression "object definition segment" cannot have the same meaning in the context of claim 1 as in the context of the 2D Blu-ray standard. Therefore, the board sees no reason to interpret the expression "object definition segment" more narrowly in the context of claim 1 of the first auxiliary request than in the context of claim 1 of the main request. Thus, it follows from section 4 above that document D5 discloses the first and second object definition segments specified in claim 1 of the first auxiliary request and that the first object definition segment disclosed in D5 is an "object definition segment for defining a graphics object". Therefore, the board finds that the method defined in claim 1 differs from the method disclosed in document D5 solely in that the graphics data stream also consists of graphics data in segments of the other types identified under point 5.1 above.

5.6 These features, which are not disclosed in document D5, have no interaction with the remaining features of claim 1. For example, claim 1 does not specify any composition or rendering steps using the information contained in these segments. Therefore, in the context of claim 1, these features merely have the effect of specifying an alternative format for the graphics data stream.

5.7 Thus, the objective technical problem may be formulated as specifying an alternative format for the graphics data stream.

5.8 Faced with this objective technical problem, the skilled person would have considered a document disclosing a particular format for transmitting graphics data such as the subtitles of document D5.

5.9 A format for subtitles is disclosed in document D3, Figures 5 to 8 and the corresponding passage of the description from page 17, line 5 to page 26, line 21.

5.10 The appellant argued that the skilled person starting from document D5 would not have consulted documents addressing two-dimensional graphics processing such as document D3 to resolve a problem with the organisation of a three-dimensional graphics stream (see point XV(d) above).

5.11 The board is not convinced by this argument. The skilled person would have realised that the graphics stream disclosed in document D5 only differs from a two-dimensional graphics stream in that it additionally contains a distance parameter. Thus, the skilled person faced with the objective technical problem would have expected to find useful teachings in documents disclosing formats of two-dimensional graphics, even if some adaptation of these teachings was required to take into account the presence of the additional depth parameter.

5.12 Therefore, the board finds that starting from document D5 and faced with the objective technical problem formulated under point 5.7 above, the skilled person would have considered document D3.

5.13 It is undisputed that document D3 discloses a graphics data stream consisting of graphics data in segments of the types identified under point 5.1 above.

5.14 The appellant argued that even if the skilled person were to have consulted document D3, they would not have found any incentive to adopt segments because D3 did not instruct using segments to increase depth data while keeping backward compatibility (see point XV(e) above). More specifically, the skilled person would not have had any incentive to transmit the distance parameter E of document D5 in one of the object definition segments specified in document D3 because such segments were only meant to transmit two-dimensional graphics objects.

The board does not find these arguments persuasive. The skilled person would have recognised the advantages of the format of the graphics data stream disclosed in document D5 and would have made the necessary adjustments to incorporate the distance parameter E in that format.

5.15 The appellant further argued that even if the skilled person had adopted segments, they would not have arrived at the full set of features of claim 1 (see point XV(f) above). The skilled person would have realised that the depth parameter of document D5 needed only a few bits to encode. The skilled person would thus have had an incentive to include these few additional bits in the same segment as the one containing the 2D graphics. This was in line with the teaching of document D5 according to which the subtitle data D and the distance parameter E were arranged next to each other. The skilled person would not have put these few additional bits into a separate segment.

The board agrees with the appellant that an obvious option for the skilled person would have been to include the few additional bits representing the depth parameter into the same segment as the one containing the 2D graphics. However, unlike the appellant, the board finds that by doing so, the skilled person would have arrived at the full set of features of the claimed method. Indeed, as set out in points 4.3 and 5.5 above, the board interprets the term "segment" merely as a part of a data stream. By including the depth parameter in the same segment as the one containing the 2D graphics, the skilled person would have arrived at a data stream comprising two separate object definition segments as specified in claim 1.

Additionally, the board finds that another obvious option for the skilled person would have been to place the 2D subtitle data D and the parameter E in different segments. When applying the data format of document D3 to the graphics data according to document D5, the skilled person would have realised that one object definition segment of document D3 included a 2D graphics object. Since this matches with the 2D subtitle data D, it would have been obvious to include this subtitle data D in an object definition segment. Furthermore, the parameter E had to be placed somewhere in the data stream. Thus, it would have been obvious to place it in another segment. By choosing this other obvious option, the skilled person would also have arrived at the full set of features of claim 1.

5.16 Therefore, the board concludes that the subject-matter of claim 1 lacks inventive step in view of the disclosure of document D5 combined with the disclosure of document D3 and the common general knowledge of the skilled person.

6. Auxiliary request 2 - inventive step (Article 56 EPC 1973)

6.1 Claim 1 of auxiliary request 2 differs from claim 1 of auxiliary request 1 in that it further specifies that the first data sequence is colour converted to full colour and transparency according to a first colour lookup table "by a first colour clut block (313)" and that the second data sequence is colour converted to full colour and transparency according to a second colour lookup table "by a second colour clut block (319)".

6.2 Claim 1 specifies a method for creating a data stream comprising a video stream and a graphics stream.

An operation of receiving and processing this data stream, namely by the first and second clut blocks, is not part of the claimed method.

6.3 Hence, the features quoted under point 6.1 above do not limit the method of claim 1.

The appellant had no counter-arguments.

6.4 As a consequence, the subject-matter of claim 1 of auxiliary request 2 lacks inventive step for the same reasons as set out under section 5 above.

7. Auxiliary request labelled "AUX2a" - clarity (Article 84 EPC 1973)

7.1 According to Article 84 EPC 1973, the claims "shall be clear".

To be clear, the claims per se must be free of contradiction (see Case Law of the Boards of Appeal of the European Patent Office, 9th edition 2019, II.A.3.1).

7.2 Claim 1 of the auxiliary request labelled "AUX2a" specifies:

"forming a first decoded data sequence from the first object definition segment and a second decoded data sequence from the second object definition segment"

7.3 Furthermore, claim 1 of the auxiliary request labelled "AUX2a" specifies:

"colour converting to full colour and transparency the first decoded data sequence according to a first colour lookup table by a first colour clut block (313) and colour converting to full colour and transparency the second decoded data sequence according to a second colour lookup table by a second colour clut block (319)"

7.4 The board holds that the skilled person reading the feature quoted under point 7.2 above would understand that the first decoded data sequence is formed from the first object definition segment and that the second decoded data sequence is formed from the second object definition segment.

7.5 Since the first object definition segment comprises two-dimensional graphics data, the first decoded data sequence comprises a two-dimensional graphics object.

7.6 According to claim 1 of the auxiliary request labelled "AUX2a", the second object definition segment comprises "information so related to the two-dimensional graphics object that it allows to obtain the three-dimensional graphics data". According to the description, one example of such information is a depth map for the two-dimensional graphics object (see description, page 6, lines 5 to 7). Hence, the second decoded data sequence may comprise a depth map for the two-dimensional graphics object.

7.7 However, it is common general knowledge of the skilled person in the field of three-dimensional images that a depth map is a grey level image. Hence, it is contradictory that such a depth map is converted to "full colour" as specified by the features quoted under point 7.3 above.

This view was shared by the appellant.

7.8 The appellant argued that the feature quoted under point 7.3 above had to be interpreted in that a "first decoded data sequence" was a left eye image and a "second decoded data sequence" was a right eye image, both the left eye image and the right eye image being generated from both a two-dimensional graphics object ("the first object definition segment") and a depth map ("the second object definition segment") (see point XV(g) above).

7.9 However, this interpretation is not supported by the description and drawings.

Figure 3 shows that the input of colour clut block 319 is a depth plane, not a left or right eye image. Correspondingly, the output of colour clut block is depth map data.

Furthermore, Figures 4-I and 4-II disclose "Transforming the depth display to full colour and transparency" (see step 425) when a segment is an object definition segment containing a depth map (see steps 405 and 409).

This is further explained in the description, page 8, lines 16 to 22: "the depth display is transformed to full colour and transparency in the colour clut 319 ... Then in step 429 the depth display from the colour clut 319 is transformed to the television 105 for overlaying the depth display on the associated video image."

Hence, according to the description and drawings, it is a depth map that is transformed to full colour via a clut block, not a left or right eye image. There is thus no support in the description and drawings for a conversion from two-dimensional graphics and a depth map to a left and right eye image before the transformation via the colour clut blocks.

7.10 The appellant argued that blocks 425 and 429 in Figure 4-II meant that the depth display was first transformed into a graphic, namely a left or right eye image, and then converted to full colour and transparency (see point XV(h) above).

The board is not convinced by this argument because the corresponding passage of the description on page 8, lines 16 to 22 sets out that the depth display is transformed to full colour in step 425, and in step 429 the "depth display from colour clut 319 is transformed to the television 105 for overlaying the depth display on the associated video image". This makes it clear that the input and output of the colour clut 319 is depth data.

7.11 In view of the above, the board concludes that the second decoded data sequence specified in claim 1 is to be interpreted as encompassing a representation of a depth map, which is contradictory to a conversion to full colour and transparency. Thus, claim 1 is not free of contradiction and, as a consequence, lacks clarity (see point 7.1 above).

8. Auxiliary requests 3 to 5 - clarity (Article 84 EPC 1973)

8.1 Claim 1 of auxiliary requests 3 to 5 contains the same features as quoted under points 7.2 and 7.3 above.

8.2 Hence, claim 1 of auxiliary requests 3 to 5 lacks clarity for the same reasons as provided with respect to claim 1 of the auxiliary request labelled "AUX2a" (see section 7 above).

9. Conclusion

The main request is not allowable because the subject-matter of claim 1 is not new over the disclosure of document D5 (Article 54 EPC 1973).

Auxiliary requests 1 and 2 are not allowable because the subject-matter of claim 1 in both requests does not involve an inventive step in view of the disclosure of document D5 combined with the disclosure of document D3 and the common general knowledge of the skilled person (Article 56 EPC 1973).

The auxiliary request labelled "AUX2a" and auxiliary requests 3 to 5 are not allowable because claim 1 of all these requests lacks clarity (Article 84 EPC 1973).

Since none of the appellant's requests is allowable, the appeal must be dismissed.