T 3277/19 28-09-2023

1. Requests for oral proceedings by videoconference

1.1 Both parties requested that the oral proceedings be held by videoconference. However, the Board did not change the format of the oral proceedings from that as summoned, which thus remained in-person on the EPO premises.

1.2 The Board found that the subject-matter of the proceedings involved complex explanations of the duct's geometry in relation to the visualisation of several virtual planes and intersections, which made in-person proceedings the appropriate format to be used in the present case. This was already explained in item 9 of the Board's communication pursuant to Article 15(1) RPBA 2020 and the parties did not further comment on this at the oral proceedings. Notably, in the oral proceedings itself flipchart drawings (see the minutes) using various colours and simultaneous explanations while developing the drawings on several occasions were made by the appellant, which the Board considers merely confirms why in-person oral proceedings was the appropriate format for these proceedings, despite both parties requesting oral proceedings by videoconference. Whilst drawings or sketches supporting or helping to illustrate oral submissions could also be made at oral proceedings held by videoconference in a different way, e.g. by sharing the screen or by using the whiteboard, the Board considered in-person oral proceedings the more appropriate and efficient format in the circumstances of the present case, not least since it expected lengthy discussions on issues for which such visual aids might be referred to often and extensively.

This reasoning applied to both parties such that the purpose would have been defeated by letting the appellant attend the oral proceedings by videoconference as provided for in Article 15a(2) RPBA 2020.

The appellant stated in writing that in-person oral proceedings are "much more complicated, time-consuming and expensive" and "cause much more CO2 emissions than oral proceedings held by videoconference". The Board did not see why in-person oral proceedings could possibly be more complicated, but could follow the other aspects on a general level and seen from a party's perspective. Nevertheless, as regards the present case, these aspects did not outweigh the need to hold oral proceedings in the appropriate format determined by the Board and for the reasons already given.

The appellant's argument that the COVID-19 pandemic "is not yet over" and that postponements may be avoided by holding the proceedings by videoconference, did not outweigh the aspects due to which the Board determined the format to be in-person. Whilst the COVID-19 pandemic is admittedly not over, the incidence of COVID-19 at the time at which the Board first dealt with the request for oral proceedings by videoconference was very low and the appellant did not show that it was restricted in travelling due to this. Nor was any postponement considered likely or indeed necessary. Should a party nevertheless have been restricted, the Board always had the possibility to alter the format to a videoconference at short notice, even if this may have given rise to other difficulties e.g. to lengthy oral proceedings or difficulties in understanding parties' arguments in relation to the duct geometry.

The appellant's further argument that the videoconference format was suitable since "the appeal proceedings are based on documentary evidence only" is as such incorrect. It is the combination of at least oral and written submissions comprising requests, allegations of fact, objections, arguments, and any documentary evidence which is taken into account in proceedings before the Board, subject to any non-admittance issues. In as far as the appellant's statement was to be understood so as to distinguish the current case from other cases in which evidence would have to be taken by inspection or by hearing witnesses, the Board was nevertheless of the view after taking this argument into consideration that in-person oral proceedings was the appropriate format for the considerations set out above.

1.3 The Board is also aware that the "Oktoberfest" (and indeed any trade fairs or other large-scale events) may sometimes make travel and accommodation more complex and expensive, but the respondent did not make this argument before the oral proceedings took place such that it came too late to have any effect on the Board's decision. Nor indeed was any evidence provided in this regard, albeit the Board accepts that last minute available flights or other transportation options and accommodation are often less numerous. Whether such problems could anyway have been largely mitigated by the respondent in the present case by early booking of e.g. travel arrangements, given the fact that the summons to in-person oral proceedings was issued in March 2022, can also be left undecided.

2. Main request - Novelty and inventive step

2.1 It was only contested between the parties whether E5 disclosed feature o). It was not disputed that the embodiment seen in Figures 1 to 5 of E5 disclosed the features a) to n).

2.2 The Board finds that E5 does not disclose feature o) in combination with the remaining features of claim 1.

Whilst the embodiment of Figures 1 to 5 discloses an air duct extending horizontally in the basement, paragraph [0014] of E5 discloses three possibilities for the way in which the air duct could extend: the air duct extends horizontally in the basement, the air duct extends in a vertical plane adapted to the circumference of the laundry drum or the air duct extends in a vertical and in a horizontal plane.

2.3 Although the passage in paragraph [0014] discloses the possibility of the air duct extending in a vertical plane (and thus rising), this paragraph does not give the skilled person any further specific guidance as to how this could be done, such that the skilled person would not know whether specific aspects of the embodiment of Figures 1 to 5 might have to be modified.

For example, the adaptation to the circumference of the laundry drum when extending in a vertical plane, as suggested in paragraph [0014], could be achieved by modifying only the upper wall of the duct so that the lower wall of the duct could then still be horizontally flat and thus not have points in three different heights as defined in feature o).

In addition, the adaptation to the circumference of the laundry drum as it extends in a vertical plane could also require that the basement duct be formed above the basement such that the duct would not be formed in said basement as defined in feature i) of claim 1. The process air outlet would also be in a elevated position and thus possibly not located within the second longitudinal half of the basement as defined in feature j) of claim 1.

2.4 The skilled person would therefore not directly and unambiguously derive from the disclosure of paragraph [0014] together with the embodiment of Figures 1 to 5 a duct extending in a vertical plane together with all other features defined in claim 1 of the main request.

2.5 The subject-matter of claim 1 of the main request is thus novel over E5.

2.6 It was then not disputed by the respondent that the embodiment of Figures 1 to 5 in E5 discloses all the features of claim 1 with the exception of feature o).

2.7 The respondent argued that the provision of different heights for the first, second and third lowest points had the effect of improving the airflow through the duct as described in paragraphs [0012] and [0014] of the patent. According to the respondent, the skilled person would read the claim in the light of paragraph [0014] and thus understand that the claim defined not only three points with different heights in the base of the duct, but a continuously rising slope that extended along the duct's length, i.e. the claim did not define three planes, but a condition that should be satisfied by any and all possible intermediate planes between the two limiting planes (Pex and P19) of the duct portion.

This argument is not persuasive. Whilst the skilled person should try to arrive at an interpretation of the claim which is technically sensible and takes into account the whole disclosure of the patent, the skilled person cannot ignore the wording of the claim which is not limited to the description. Thus, the fact that the description in paragraph [0014] concerns the reduction of pressure drops in the duct and discusses the "core of the invention" in regard to a "gently rising shape of the process air duct" and the absence of "sharp corners", this is simply not reflected in the wording of the claims. Similarly, while paragraph [0012] explains the object of the invention as being to improve the flow of the air stream, this bears no relation to the breadth of claim 1.

Features l) and o) of claim 1 define exactly three planes, three sections and three points in a way that makes technical sense, and the Board cannot identify any specific incongruence in the text that would prompt the skilled person to interpret the third plane as a condition that should be met by every intermediate plane. The Board notes that dependent claim 4, as opposed to claim 1, defines "a plurality of intermediate planes" such that it is entirely reasonable to conclude that claim 1 is broader than dependent claim 4 and that claim 1 merely defines a single intermediate plane.

Claim 1, and in particular feature o), only defines three points at three different heights along the duct and encompasses embodiments in which the base part of the basement duct portion is not smooth or continuously rising but comprises, for example, steps and/or several changes in height. In addition, as also discussed during the oral proceedings, the skilled person knows from common general knowledge that airflow is affected by the whole shape of the duct and not only by its lowest points/parts, which was indeed not contested by the respondent. Hence, without a more specific definition of the shape of the duct walls, it is impossible to ascertain the fluid behaviour and consequently whether an improvement of the airflow might occur or not. The technical effect alleged by the respondent (improving the airflow) is therefore only given for a fraction of the embodiments covered by the claim and not attainable throughout the whole range covered.

2.8 The Board thus finds that the definition of the lowest height at three single points of the surface of the duct cannot alone provide any effect on the airflow passing through it, such that the objective technical problem to be solved compared to E5 is thus to provide an alternative base part for the basement duct.

2.9 Given this objective technical problem, feature o) is nothing more than a mere design choice for the skilled person searching for an alternative for the base of the duct at the relevant date. Such design choices lie within the normal practice of a skilled person, which would have been arrived at merely by applying routine design measures. The respondent provided no counter-argument to this, when it was discussed, and instead maintained only that the objective technical problem to be solved should be seen differently, i.e. formulated more ambitiously.

2.10 The subject-matter of claim 1 of the main request therefore lacks an inventive step. Article 100(a) in conjunction with Article 56 EPC hence prejudices maintenance of the patent as granted. The main request is thus not allowable.

3. Auxiliary request 1a new - inventive step

3.1 The Board admitted auxiliary request 1a new into the proceedings, but since it found that the subject-matter of claim 1 of the request lacked an inventive step, the reasons for its admittance can be left aside.

3.2 Claim 1 of auxiliary request 1a new defines, inter alia, a family of third lowest points defining a curve of third vertical heights which is monotone.

3.3 The respondent argued that the term "monotone" in the meaning of the patent could be derived from paragraph [0144] and implied a constant increase in height at least for the part of the lower surface of the duct constituted by the family of third lowest points, and that this constant increase in height had the effect of improving the airflow at least in a portion of the duct.

The Board does not accept these arguments. First, in mathematical terms, a monotonic curve does not have to necessarily rise (or fall) and may include flat sections (as stated e.g. in E7). The reference to the description paragraph [0144] does not alter this conclusion. But even assuming that it necessarily ascended in the sense indicated in the patent, the claim does not define how many third lowest points there are in the family, nor how far apart these points are arranged (i.e. it does not define a minimum distance between them). The claim therefore encompasses as few as two points separated by a e.g. negligible distance compared to the total length of the basement duct portion.

3.4 The respondent also argued that the skilled person would exclude embodiments that do not make technical sense so that a negligible distance would be excluded. However, the claim does not provide any guidance as to any proportions, nor does it prescribe any particular shape. Instead, the conditions to set out the third basement duct portion sections are simply left very broad.

3.5 Since the distance between the points of the family can be very small, the Board finds, similarly as for the main request, that the definition of a curve between the at the least two singular points of the surface of the duct constituting a family does not provide any recognisable technical effect on the airflow passing through the duct, even when omitting the fact that the overall cross-section and shape of the rest of the duct is left entirely undefined. Thus, the objective technical problem is, again, merely to provide an alternative base part for the basement duct.

3.6 As explained in item 2 above, it is obvious to the skilled person to change the base part of the basement duct in the first longitudinal half as set out in regard to the main request when starting from E5. Since the distance between the points of the family can be very small, in practice such a changed base part would also necessarily result in a basement duct profile having more than one intermediate third basement duct portion section (i.e. a family) through the resulting lower part of the duct with an intermediate height.

3.7 Therefore, the subject-matter of claim 1 of auxiliary request 1a new also does not involve an inventive step, contrary to the requirement of Article 56 EPC. Auxiliary request 1a new is thus not allowable.

4. Auxiliary request 5 - inventive step

4.1 Claim 1 of auxiliary request 5 was amended to define that the family of third lowest points defines a curve of third vertical heights which is an increasing monotone curve (whereas, in auxiliary request 1a new, the curve was simply monotone).

4.2 The respondent argued that the skilled person would have understood from paragraphs [0145] and [0146] of the patent that an increasing monotone curve would always rise and have no flat sections, and that this condition applied to any possible intermediate third basement duct portion section taken along the basement duct portion. The claim therefore allegedly defined a rising curve along the length of the duct which improved the airflow through the duct.

These arguments are not persuasive. Paragraphs [0145] and [0146] cannot be used to limit the claim beyond the meaning of the claim wording. As the Board explained above in item 3.5, the distance between the sections and the points of the family can essentially be negligible. Regardless of whether an increasing monotone curve is a specific type of monotone curve that always rises in the flow direction, the claim still does not define that the curve must extend over a meaningful length of the duct portion. The Board cannot therefore arrive at a conclusion different from the one for claim 1 of auxiliary request 1a new, since, in the absence of a more defined duct shape, there is no recognisable effect on the airflow passing through the duct, such that the objective technical problem remains to provide an alternative base part for the basement duct.

4.3 As set out in item 2 above in regard to the main request when starting from E5, it is obvious for the skilled person to modify the base part of the basement duct in the first longitudinal half. Since the distance between the points of the family can be very small, in practice such a modification would necessarily result in a basement duct profile having more than one intermediate third basement duct portion sections (i.e. a family) with a base part with an increasing height.

4.4 Therefore, the subject-matter of claim 1 of auxiliary request 5 also does not involve an inventive step, contrary to the requirement of Article 56 EPC. Auxiliary request 5 is thus not allowable.

5. In the absence of any request which meets the requirements of the EPC, the patent must be revoked (Article 101(2) and (3)(b) EPC).