T 0776/21 28-11-2022

1. Novelty

The subject-matter of claim 1 is novel over D4, as the blended split winglet presented at the NBAA 2011 exhibition does not anticipate feature 2.1 of claim 1.

1.1.1 It was not disputed that the blended split winglet (documents D4A-D4K as evidence) was presented at the NBAA 2011 exhibition at a date which is before the effective date of filing of the patent application.

The opposition division found that the subject-matter of claim 1 differed from D4 in features 2.1, 3.3, 3.5 and 4.2. The remaining features of claim 1 are undisputedly disclosed by D4.

1.1.2 The Board agrees with the appellant's interpretation of features 3.3, 3.5 and 4.2 which merely specify the suitability of the wing tip to achieve these features when fitted to a wing.

1.1.3 The respondent acknowledged that the wing was not part of the subject-matter. However, as documents D4A to D4K did not disclose the blended split winglet attached to a wing they concluded that features 3.3, 3.5 and 4.2 were not disclosed by the blended split winglet presented at the NBAA 2011 exhibition. In their view these features provided conditions that had meaningful limitations on the winglet.

1.1.4 The Board takes the view that features 3.3, 3.5 and 4.2 limit claim 1 insofar as they relate to the wing tip as such, which comprises a winglet and a fin, and require the wing tip to be suitable for being mounted on a wing such as to fulfil the geometrical requirements of these features.

As a matter of fact:

- feature 3.3 requires that when the wing tip is mounted to the wing, the winglet is swept and tapered to a greater extent than the wing;

- Feature 3.5 requires that when the wing tip is mounted to the wing, the winglet forms a continuous and smooth transition from the leading edge of the wing to the linear section; and

- Feature 4.2 requires that when the wing tip is mounted to the wing, the fin extends below the wing chord plane and the winglet.

The above features are anticipated by the blended split winglet presented at the NBAA 2011 exhibition. Indeed, the blended split winglet is swept and tapered, and a fin is provided which extends below the winglet. Keeping in mind that the wing is not part of the claimed subject-matter and as such is undefined, it must be concluded that the blended split winglet of D4 is suitable for being mounted on a wing which is less swept and tapered, whilst forming a continuous and smooth transition from the leading edge of the wing to the linear section of the winglet, with the fin extending below the wing chord.

In fact, given the blended split winglet according to D4, these geometrical requirements are met simply by the provision of an appropriate less swept and tapered wing and an appropriate attachment thereto; no structural (geometrical) modifications of the blended split winglet would be necessary. The respondent submitted that features 3.3, 3.5 and 4.2 provided conditions that had meaningful limitations for the wing tip; however they did not point to any concrete features of the known blended split winglet that would make it unsuitable for meeting the above-mentioned requirements when mounted on a wing.

1.1.5 However, the Board follows the opposition division and the respondent's view that the blended split winglet on display is a model. Although the model is representative of a wing tip geometry, none of the videos or pictures related (see documents D4A-D4K) show an attachment end shaped to attach to a wing. Feature 2.1 is therefore not anticipated by the blended split winglet presented at the NBAA 2011 exhibition.

1.1.6 In line with the interpretation of features 3.3, 3.5 and 4.2, feature 2.1 should be interpreted as an attachment end suitable to attach (A) to a swept and tapered wing with a leading edge. While the shape of the wing has no limitation on the attachment end, the wing tip is required to have an attachment end suitably shaped to attach a wing. The appellant did not provide information allowing to conclude that the blended split winglet on display at the NBAA 2011 exhibition was as such provided with an end suitable for attaching a wing.

1.1.7 There is no need to further discuss the appellant's arguments in support of feature 2.1 being disclosed by D4 because this feature does not anyway contribute to inventive step, as explained below.

1.2 Inventive step starting from D4

The subject-matter of claim 1 is obvious in view of D4 combined with common general knowledge.

1.2.1 As explained above, the subject-matter of claim 1 differs from the blended split winglet presented at the NBAA 2011 exhibition in that the wing tip comprises an attachment end shaped to attach to a wing.

The technical effect of the identified difference is to enable the attachment of the wing tip to the wing. The problem to be solved may be regarded as to provide attachment means suitable to attach the wing tip to a wing.

Starting from the blended split winglet, it is obvious for the skilled person to add an attachment end shaped to attach to a wing. Indeed, winglets are meant to be attached to a wing. The skilled person would therefore provide an attachment end at the root of the winglet.

1.2.2 The respondent is of the opinion that the inventive step argumentation is based on hindsight. In their view it is not obvious to add an attachment end to the blended split winglet displayed at the NBAA 2011 exhibition such as to attach to a wing. The winglet may be integrated in the wing.

1.2.3 The Board does not agree with the respondent. Whilst it is accepted that a winglet integrally formed with a wing is a known possibility which would not require an attachment end, it is well known in the art that a winglet might instead be attached to a wing. Such alternative would be of obvious implementation on the blended split winglet for the skilled person. This would actually be the most straight forward alternative as the blended split winglet was displayed as such and not with a wing.

The Board further notes that the opposed patent itself does not give any concrete examples of an attachment end shaped to attach to a wing. As a consequence the skilled person should be assumed to have no difficulties (requiring the exercise of an inventive activity) in providing such an attachment end, as in fact submitted by the respondent when discussing sufficiency of disclosure at the oral proceedings before the Board.