T 2131/19 31-03-2021

1. Procedural aspects

1.1 The case is ready for decision which is taken in written proceedings without holding oral proceedings, in accordance with Article 12(8) RPBA 2020 and with Articles 113 and 116 EPC.

1.2 The principle of the right to be heard pursuant to Article 113(1) EPC is observed since the appellant's submissions are fully taken into account.

The respondent has made no written submissions or requests in the appeal proceedings.

1.3 With letter dated 17 March 2021, the appellant withdrew its original request for oral proceedings, to which the parties had been duly summoned. Since this withdrawal was not declared within the period provided for in Rule 103(4)(c) EPC, the appellant cannot benefit from a reimbursement of the appeal fee at 25%.

1.4 The appeal is thus ready for decision on the basis of the contested decision to be reviewed and the extensive written submissions of the appellant (Article 15(3) RPBA 2020), while preserving their rights under Articles 113 and 116 EPC, so that the oral proceedings are herewith cancelled.

2. Auxiliary request 2 - Sufficiency of disclosure, Article 83 EPC

Claim 1 of auxiliary request 2 filed on 17 March 2021 corresponds to claim 1 of auxiliary request 2 filed during the oral proceedings before the opposition division. Claims 2 to 10 of the auxiliary request 2 filed on 17 March 2021 of the auxiliary request 2 correspond to claims 3 to 11 as granted.

2.1 The opposition division found that the invention according to claim 1 of auxiliary request 2 did not meet the requirements of Article 83 EPC. In point 14.2.3.1 of the reasons of the decision under appeal, the opposition division held that the proprietor had failed to provide proof that the knowledge needed to perform the invention is common and general knowledge. According to the opposition division, the scoring line presents some residual thickness, which will be broken upon the opening the crown cap. The opposition division further found in point 14.2.3.3 of the reasons that the skilled person might indeed devise a tool for forming a score line with rounded edges, however, in order to meet the specific requirements for the crown cap, the skilled person would have to employ non-obvious measures in order to carry out the invention.

2.2 In reviewing this finding pursuant to Article 12(2) RPBA 2020, the Board comes to the conclusion that the invention according to the subject-matter of claim 1 is sufficiently disclosed.

2.2.1 According to the jurisprudence of the Boards of Appeal, an objection of lack of disclosure presupposes that there are serious doubts substantiated by verifiable facts. Contrary to the assumptions of the opposition division, the burden of proof is upon the opponent to establish on the balance of probabilities that a person skilled in the art, using his common general knowledge, would be unable to carry out the invention (see the Case Law of the Boards of Appeal, 9th edition, 2019, II.C.9, first two paragraphs, in particular with reference to T 19/90 and T 182/89).

2.2.2 The Board notes that in this particular case, the opposition division acknowledges in point 14.2.3.3 that the skilled person would be capable of forming a score line with rounded edges, as shown in figure 24. As correctly argued by the appellant in point 5 of the statement of grounds of appeal, the claim merely states that the first and second scoring lines comprise moieties on either side of the scoring lines having curved edges in cross-section profile, that the scoring lines form a seal and that the torn open score line is resulting in one open crown that forms two edges which are curved (see also paragraph [0047] of the patent specification). The Board concurs with the appellant, that the skilled person is, without undue burden, capable of producing and embossing in a metal sheet with a cross section falling within the invention as depicted by the subject-matter of claim 1, irrespective of whether that crown cap in its further use meets the alleged requirements or expectations pointed out by the opposition division.

2.3 The points 2.1 and 2.2 above correspond to point 7.2 of the preliminary opinion issued with the communication according to Article 15(1) RPBA 2020. This preliminary finding of the Board has not been commented on nor has it been contested by the parties during the appeal proceedings.

2.4 Under these circumstances, the Board - having once again taken into consideration all the relevant aspects concerning said issues - sees no reason to deviate from its above-mentioned finding.

2.5 It follows that the appellant has demonstrated in a convincing manner that the essential considerations underpinning the decision under appeal with respect to sufficiency of disclosure of auxiliary request 2 do not withstand a review in appeal. Thus, the decision under appeal is to be set aside.

3. Auxiliary request 2 - other patentability requirements

3.1 The Board, taking into consideration all relevant aspects concerning clarity and added subject-matter, concurs with the findings of the opposition division of point 14.1.2 of the reasons that auxiliary request 2 meets the requirements of Articles 84 and 123(2) EPC.

3.2 The Board also does not see any reason to deviate from the opposition division's obiter dictum in point 15 of the reasons that the subject-matter of claim 1 of the patent as granted is new and inventive. Since the subject-matter of claim 1 of auxiliary request 2 is narrower than the subject-matter of claim 1 of the patent as granted, the Board is of the view that the requirements of novelty and inventive step are also met by auxiliary request 2 at least for the same reasons that apply for the main request.

4. Conclusion

It follows that auxiliary request 2 meets the requirements of the EPC. The case is thus to be remitted to the opposition division with the order to maintain the patent according to auxiliary request 2.