T 2050/23 04-09-2025

1. Main Request

1.1 Article 100(a) EPC, Novelty

1.1.1 The subject-matter of claim 1 is novel over D1, feature 1.8 not being disclosed therein.

1.1.2 From the wording of claim 1 alone, the Board finds it to be unambiguous that the 'separate and independent air supplies' relate to separate and independent air sources, not merely to air conduits. Indeed, as the opposition division also reasoned, the qualifiers 'separate and independent' define the structure and nature of each of the air supplies to be neither influenced nor affected in their function by the other. This can only be achieved if the air supplies are actually separate and independent air sources.

1.1.3 The Board concurs with the opponent's opinion that the expression 'separate and independent air supplies' should be given its broadest reasonable interpretation in the art. However, this is found not to include merely two separate air conduits (e.g. conduits 35 and 36 of D1) supplying the respective crowns of injection holes with air from the same source. Such conduits would not allow separate and independent supply of air to the crowns not least, as also argued by the proprietor, with respect to the delivered air pressure, a single air source dividing into two conduits being unable to deliver two different air pressures simultaneously.

1.1.4 As to the opponent's argument regarding Figures 2 and 3 of the patent not depicting separate and independent air sources and paragraph [0020] of the patent also not limiting the understanding of 'separate air supplies' to mean separate air sources, this is not seen to call into question the clear and unambiguous understanding of feature 1.8 based on the wording of the claim alone. The referenced figures and paragraph do not contradict the skilled reader's understanding that separate and independent air supplies must be realised by a separate air source supplying each crown of holes. Thus, even taking the description and drawings in to consideration, this is the only way in which the skilled person would interpret this feature based on the technical implications of the 'separate and independent' qualifier, as detailed in point 1.1.2 above.

1.1.5 The subject-matter of claim 1 is thus novel over D1, feature 1.8 not being disclosed therein.

1.2 Admittance of sheet filed at oral proceedings

1.2.1 At oral proceedings before the Board, the proprietor filed a sheet of evidence showing spinning and opening of yarn fibres, allegedly photographed on the claimed device. The opponent argued that this late filed sheet of evidence should not be admitted.

1.2.2 The Board decided to admit the evidence since it was used by the proprietor merely for explanatory purposes of how the spinning device according to the invention worked and added no information going beyond that which the skilled person anyway understood from their general knowledge in the field and the disclosure of the patent publication.

1.3 Article 100(a) EPC, Inventive step

1.3.1 Starting from D1 and combining the technical teaching of D6 with this, the subject-matter of claim 1 does not involve an inventive step.

1.3.2 As found above, D1 fails to disclose feature 1.8 of claim 1, i.e. that the upper and lower crowns of holes are fluidically connected to separate and independent air supplies.

1.3.3 The proprietor's proposed technical problem to be solved reading 'how to optimise the working of the upper and lower crowns of holes in a synergistic way' is not seen to be objective. Firstly, the air supply known from D1 with independently operable valves 26, 27 already allows a degree of synergy to be obtained between at least the flowrate of air supplied to the upper and lower crown of holes. Secondly, no evidence has been provided that the separate and independent air supplies alone allow the functioning of the spinning device to be optimised.

1.3.4 Albeit solely in writing, the proprietor argued with reference to paragraph [0049] of the patent that feature 1.8 had the effect of improving the management of air movement within the spinning chamber. However, this disclosure in paragraph [0049] specifically relates to providing two crowns of injection holes which are already known from D1 (see 31, 32 in Fig. 2 of D1). A technical problem derived from these two crowns is thus also not objective.

1.3.5 As indicated in point 1.3.3 above, D1 already allows the airflow to the upper and lower crowns of holes to be controlled via valves 26, 27 yet, with a common air source, this does not allow the supplied air pressure to be varied between the two crowns. Conversely, the two air sources seen to be implicit in the claimed separate and independent air supplies allow not only the flowrate of air but additionally the supply pressure to be independently controlled for the upper and lower crown of holes of claim 1. Despite the supply pressure advantage not being explicitly discussed in the patent, this advantage is something that the skilled person would necessarily appreciate when considering the technical advantage offered by the two separate and independent air sources, as the proprietor also argued. These two air sources credibly allow an improvement in the controllability of the airflow in the spinning process such that, as also argued by the opponent, the objective technical problem to be solved is 'how to improve the controllability of the airflow in the spinning process'.

1.3.6 In wishing to solve this objective technical problem, the skilled person would find in D6 the technical teaching that the air supplies 29 feeding the crowns of nozzles 9 and 11 can be supplied via separate air sources that allow an independent or alternating air supply (see the paragraph bridging pages 13 and 14 of D6). To the same degree in which the skilled person understood the technical advantage of two air sources when formulating the objective technical problem to be solved (i.e. improved controllability of the airflow through independent pressure control), they would equally appreciate the separate air sources of D6 providing this independent pressure control advantage, even if not explicitly indicated in D6. As a consequence, starting from D1 and wishing to solve the posed problem, D6 would guide the skilled person to the claimed solution without exercise of an inventive step.

1.3.7 The proprietor's contention that D6 was primarily concerned with piecing broken yarn, and thus the two independent air supplies were merely an incidental alternative embodiment of the disclosure, is not accepted. Lines 15 to 25 of the full paragraph on page 4 of D6 discloses in detail how, during the spinning process, air is supplied to both the set of nozzles 9 and 11 and a variance in air pressure supplied to the two sets of nozzles being between a factor of 1.1 and 10. As such this is directed to the spinning process, not the piecing process, the proprietor's contention thus being unpersuasive.

1.3.8 The proprietor's argument that the two separate air supplies in D6 had no declared advantages associated with it and so could not guide the skilled person to the claimed solution of the posed problem is also not accepted. As explained in point 1.3.6 above, from their general knowledge the skilled person would read a key advantage of two separate air supplies of D6 to be the ability to supply the two sets of nozzles 9 and 11 with different air pressures. This was accepted in favour of the proprietor when formulating the objective technical problem and so a similar standard of the skilled person's technical knowledge can reasonably be applied when considering the teaching of D6.

1.3.9 The proprietor further argued that D6 disclosed both crowns of holes entering the spinning chamber at a position between the inlet and the front input of the spindle which, being different to the arrangement defined in feature 1.7 of claim 1, would again dissuade the skilled person from considering this disclosure for the modification of D1. This argument is also not accepted. The claimed arrangement of the crowns of holes in feature 1.7 of claim 1 is known from D1 and does not contribute to the technical effect. Thus, it requires no modification in order for the objective problem to be solved and for the claimed subject-matter to be reached. Even if D6 discloses a different precise positioning of the crowns of holes, these are still used for the spinning of yarns and its precise position does not affect the pressure supply such that the teaching regarding the provision of two separate air sources for the crowns would be adopted into D1 by the skilled person without hindrance.

1.3.10 The proprietor's additional argument that the skilled person would not consider the claimed solution to the technical problem since many other more simple solutions would be preferred is also not accepted. No matter how many solutions to a technical problem are available for the skilled person to adopt, the claimed one just needs to be obvious for the claimed subject-matter to lack an inventive step, irrespective of whether this solution is the simplest or not. In the present case, the solution of including two separate and independent air supplies is provided by D6 and guides the skilled person to the claimed subject-matter without exercise of an inventive step. Whether this is the simplest solution or not is immaterial for the finding.

1.3.11 In conclusion, therefore, the subject-matter of claim 1 lacks an inventive step when starting from D1 and, in the light of the objective technical problem, combining the technical teaching of D6 with this.

1.3.12 The ground for opposition under Article 100(a) EPC in combination with Article 56 EPC is thus prejudicial to maintenance of the patent as granted.

2. Auxiliary request 1

2.1 Admittance

2.1.1 Auxiliary request 1 was filed at oral proceedings before the opposition division in response to the late filing of D6 just prior to the expiry of the time limit for final submissions under Rule 116(1) EPC. The proprietor's first opportunity to respond to the late filing of D6 was thus at the oral proceedings. Having admitted D6 and finding auxiliary request 1 to prima facie overcome the inventive step objection, the opposition division's decision to admit the auxiliary request cannot be faulted. The opposition division is seen to have applied the appropriate criteria correctly and in a reasonable way.

2.1.2 Separately from the above, yet also of importance, is the procedural situation on appeal. The opposition division took a decision in relation to auxiliary request 1 such that it is a part of the case on which the decision under appeal is based (see Article 12(2) RPBA). The Board thus fails to see a legal basis for this request to be excluded from the proceedings.

2.1.3 Auxiliary request 1 is thus part of the appeal proceedings.

2.2 Inventive step

2.2.1 Starting from D1, in addition to feature 1.8 of claim 1 of the main request found not to be known from D1, both parties were in agreement that the following features of claim 1 were additionally not known from D1:

- wherein a main axis of the upper injection holes intersects the main axis at a point (S) that is distant from said front input, with respect to the spinning direction, by an upper portion between 0mm and 4mm; and - wherein said upper injection holes have a width varying between 0.5mm and 0.8mm.

2.2.2 The patent fails to attribute an improved technical effect for the claimed spinning device in relation to the two parameter ranges identified immediately above. In particular, no evidence or data was presented by the proprietor in support of its allegation that the claimed distance of point S from the front input of 0 to 4mm resulted in improved spinning performance. For example, how was this claimed range particularly advantageous over, say, a distance of 4.5mm or 5mm. Similarly, no evidence was presented why the claimed width of the upper injection holes of 0.5mm to 0.8mm was advantageous over immediately neighbouring holes sizes of 0.4mm or 0.9mm.

2.2.3 The proprietor presented a plurality of alleged technical effects that the claimed parameter ranges offered the claimed spinning device, ranging from the yarn fibres being bent an appropriate amount by the impacting air flow, to ensuring a controlled degree of airflow interaction from the upper and lower crown of holes. However, absent any disclosure in the patent of an improved technical effect achieved specifically by the claimed parameter ranges and without any credible evidence being presented in the proprietor's submissions in this regard, these effects cannot be taken into account in formulating an objective technical problem to be solved.

2.2.4 The proprietor's argument that the claimed parameter ranges had been included in dependent claims as filed and so had to be seen as technically relevant, is not accepted. Irrespective of the source of the parameter ranges now included in claim 1, these features are disclosed in the application as filed without any indication as to how the particular values disclosed provide a technical effect for the subject spinning device. Whilst they are no doubt technical features of the claimed device, this does not necessarily imply that they provide an additional technical effect over D1. In addition, the alleged technical effect has not been corroborated with any evidence in the proprietor's submissions in the appeal procedure such that the Board cannot recognise a credible technical effect supporting the consideration of the two claimed parameter ranges in the formulation of a technical problem to be solved and in the recognition of an inventive step in the claimed subject-matter.

2.2.5 As the opponent argued, the definition of specific dimensions relating to the upper injection holes of the claimed spinning device are not suitable to provide a technical effect in the absence of further dimensions, such as the angles of injection, the distances between the holes or the dimensions of the spinning chamber, that would somehow define a more specific flow. In isolation, the claimed distances to the intersection point and widths of the injections holes cannot provide a technical effect and are merely arbitrary values that cannot contribute to an inventive step.

2.2.6 It follows that the sole technically relevant feature differentiating claim 1 over D1 is feature 1.8 found in respect of the main request (see point 1.3 above) not to allow an inventive step to be recognised. Thus, with the same reasoning, the subject-matter of claim 1 of auxiliary request 1 also fails to involve an inventive step (Article 56 EPC).

2.2.7 Auxiliary request 1 is thus not allowable.

3. Auxiliary request 2

3.1 Inventive step

3.1.1 Starting from D1, in addition to feature 1.8 of claim 1 of the main request found not to be known from D1, both parties were in agreement that the following features of claim 1 were additionally not known from D1:

- wherein a main axis of the lower injection holes intersects the main axis at a point that is distant from said front input, with respect to the spinning direction, by a lower portion between 0.5mm and 3.5mm; and

- wherein said lower injection holes have a width varying between 0.7mm and 1.1mm.

3.1.2 As was found for claim 1 of auxiliary request 1 with respect to the upper injection holes, analogously for claim 1 of auxiliary request 2 directed to parameters relating to the lower injection holes, evidence or data is neither included in the patent nor was presented by the proprietor in support of its allegation that the claimed distance of the intersection point of the axes from the front input of 0.5mm to 3.5mm resulted in improved spinning performance. For example, how was this claimed range particularly advantageous over, say, a distance of 0.3mm or 3.8mm.

Similarly, no evidence was presented why the claimed width of the lower injection holes of 0.7mm to 1.1mm was advantageous over immediately neighbouring holes sizes of, say, 0.5mm or 1.4mm.

3.1.3 Consequently, absent any demonstrable technical effect for the claimed ranges, these cannot be taken into account in the formulation of a technical problem and are merely arbitrary values.

3.1.4 The proprietor presented several alleged technical effects demonstrated by the claimed parameter ranges (e.g. the distance of the lower to the upper crown of holes achieving a desired twist quality; the hole width ensuring laminar flow of the air-jets) yet, absent any evidence to support these technical effects, they were nothing more than allegations. These parameter features thus cannot be taken into account in formulating a technical problem to be solved as explained above in point 3.1.3.

3.1.5 Again, similarly to the finding for auxiliary request 1, the claimed ranges being originally filed in dependent claims does not provide any substantiation of a verifiable technical effect. The Board thus cannot recognise a credible technical effect supporting the consideration of the two claimed parameter ranges in the recognition of an inventive step in the claimed subject-matter.

3.1.6 As the opponent argued, the definition of specific dimensions relating to the lower injection holes of the claimed spinning device are not suitable to provide a technical effect in the absence of further dimensions, such as the angles of injection, the distances between the holes or the dimensions of the spinning chamber, that would somehow define a more specific flow. In isolation, the claimed distances to the intersection point and widths of the lower injections holes cannot provide a technical effect and are merely arbitrary values that cannot contribute to an inventive step.

3.1.7 It thus follows that the sole technically relevant feature differentiating claim 1 over D1 is feature 1.8 found in respect of the main request (see point 1.3 above) not to allow an inventive step to be recognised. Thus, with the same reasoning, the subject-matter of claim 1 of auxiliary request 2 also fails to involve an inventive step (Article 56 EPC).

3.1.8 In conclusion, irrespective of any considerations of admittance, auxiliary request 2 is not allowable.

4. Auxiliary request 3

4.1 Admittance

4.1.1 Auxiliary request 3 was filed at oral proceedings before the opposition division in response to the late filing of D6 just prior to the expiry of the time limit for final submissions under Rule 116(1) EPC. As was also the case for auxiliary request 1, the proprietor's first opportunity to respond to the late filing of D6 was at the oral proceedings.

4.1.2 The opponent's argument that the new auxiliary requests should have been filed between the Rule 116(1) EPC deadline and the oral proceedings before the opposition division is not accepted. Irrespective of the need for the proprietor to translate and digest the content of D6, which would have taken some time, it would be inappropriate to demand such a swift response of the proprietor to a piece of prior art, itself filed on the deadline for final submissions and consequently not providing any time for the proprietor to file a timely response within the Rule 116(1) EPC deadline.

4.1.3 The Board thus came to the conclusion that auxiliary request 3 had been admissibly raised in the opposition proceedings and consequently there was no reason to exclude auxiliary request 3 from the appeal proceedings (cf. Article 12(4), first paragraph, RPBA). Auxiliary request 3 is thus part of the proceedings.

4.2 Inventive step

4.2.1 Starting from D1, this failed to disclose the following features of claim 1:

- Feature 1.8 i.e. the upper and lower crowns of holes are fluidically connected to separate and independent air supplies; and

- wherein, with respect to a cross-sectional plane perpendicular to the main axis of the spinning channel, projections of said upper injection holes and lower injection holes are directed along tangential directions, tangent to a cylindrical side wall of said spinning chamber.

4.2.2 The opponent's contention that paragraph [0106] in combination with Fig. 3 of D1 disclosed a tangential flow of air from the lower crown of holes into the spinning chamber is not accepted. Paragraph [0106] itself does not disclose a tangential air flow, rather it describes how the flow of air leaving the nozzles (30) initiates a 'rotating airstream' ("rotierender Luftstrom"). Fig. 3 also fails to disclose a truly tangentially directed airflow into the spinning chamber, since the nozzle orientation entering the chamber is at an angle to a truly tangential direction.

4.2.3 On the basis of the upper and lower injection holes being directed tangentially, both parties were in agreement that the partial technical problem to be solved should read 'how to improve the swirling airflow in the spinning chamber'. The Board also finds this problem to be objective since the tangentially oriented injection holes would promote laminar airflow in the chamber, as would both upper and lower injection holes having this orientation. This effect is not related to the effect of feature 1.8 (improve the controllability of the airflow in the spinning process) such that there is no synergy between the feature 1.8 and the feature added to claim 1 of auxiliary request 3. These are merely an aggregation of features. Due to the presence of an aggregation of functionally independent features, a separate partial technical problem must be formulated for each of these features.

4.2.4 As for the partial objective technical problem to be solved for feature 1.8, this has already been established with respect to claim 1 of the main request, see point 1.3.5 above.

4.2.5 As regards feature 1.8 and the related partial objective technical problem to be solved, this feature does not render the claimed subject-matter inventive in view of the technical teaching of D6 for the same reasons as found for claim 1 of the main request (see points 1.3.6 to 1.3.11 above).

4.2.6 As regards the upper injection holes and lower injection holes being directed along tangential directions, tangent to a cylindrical side wall of said spinning chamber, the two step modification required to reach the claimed subject-matter is not rendered obvious by any of the skilled person's general knowledge, D2 or D3.

4.2.7 Regarding the skilled person's general knowledge, the opponent argued that arranging a tangential entry of the airflow to the spinning chamber had the self-evident benefit of providing a laminar airflow for the yarn being spun. This much can be accepted. However, duplicating this arrangement for the upper crown of holes of D1 which, according to Fig. 4 appear to have a radial entry 25 into the spinning chamber, is not seen to be an obvious additional modification for the skilled person, not least since the first step modification of providing the tangential entry for the lower crown of holes of Fig. 3 of D1 would already improve the swirling airflow in the spinning chamber, thus solving the posed objective technical problem.

4.2.8 As regards the technical teaching of D2, the opponent contended that this also disclosed tangential entry of injection air into the chamber (see Fig. 5). This much can be accepted for the lower crown of holes. However, the skilled person receives no motivation from D2 for the further step of duplicating this arrangement for the upper crown, none of the Figures 2 to 5 giving any indication that the nozzles 8 of the upper crown should tangentially enter the spinning chamber 4.

4.2.9 Similarly for D3, it is accepted that Fig. 2 clearly shows tangential entry of the lower injection holes 10 into the spinning chamber 3. However, the upper injection holes 21 are depicted to enter the chamber 3 axially along its walls, no hint thus being provided for the further modification of D1 required to reach the claimed subject-matter.

4.2.10 In summary, therefore, starting from D1 and wishing to solve the first partial objective technical problem, D6 would guide the skilled person to feature 1.8. Conversely, starting from D1 and wishing to solve the second partial objective technical problem in point 4.2.3, none of the skilled person's general knowledge, D2 or D3 would guide the skilled person to modify the upper crown holes of D1 in order to reach the claimed subject-matter without the exercise of an inventive step.

4.2.11 The subject-matter of claim 1 thus involves an inventive step (Article 56 EPC).