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  1. Home
  2. T 2050/23 04-09-2025
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T 2050/23 04-09-2025

European Case Law Identifier
ECLI:EP:BA:2025:T205023.20250904
Date of decision
04 September 2025
Case number
T 2050/23
Petition for review of
-
Application number
17178196.6
IPC class
D01H 1/115
Language of proceedings
EN
Distribution
NO DISTRIBUTION (D)

Download and more information:

Decision in EN 462.66 KB
Documentation of the appeal procedure can be found in the European Patent Register
Bibliographic information is available in:
EN
Versions
Unpublished
Application title

AIR-JET TYPE SPINNING DEVICE

Applicant name
Savio Macchine Tessili S.p.A.
Opponent name
Saurer Intelligent Technology AG
Board
3.2.05
Headnote
-
Relevant legal provisions
European Patent Convention Art 100(a)
European Patent Convention Art 56
Rules of procedure of the Boards of Appeal Art 12(2)
Keywords
Inventive step - Main request, auxiliary requests 1 and 2 (no); auxiliary request 3 (yes)
Catchword
-
Cited decisions
-
Citing decisions
-

I. An appeal was filed by both the appellant (opponent) and the appellant (patent proprietor) against the interlocutory decision of the opposition division in which it found that European patent No. 3 266 910 in an amended form met the requirements of the EPC.

II. The patent proprietor requested that the decision of the opposition division be set aside and the patent be maintained as granted (main request), or as an auxiliary request 1 that the appeal of the opponent be dismissed, or that the patent be maintained according to one of auxiliary requests 2 to 4 filed with the statement of grounds of appeal.

The opponent requested that the decision under appeal be set aside and the patent be revoked.

III. The following documents are relevant to the present decision:

D1 DE 10 2007 006 674 A1

D2 CH 705221 A1

D3 WO 2007/033717 A1

D6 WO 2013/117493 A1

IV. The Board issued a summons to oral proceedings and a subsequent communication containing its provisional opinion, in which it indicated inter alia that the subject-matter of claim 1 of each of the main request and auxiliary requests 1 and 2 did not involve an inventive step.

V. Oral proceedings were held before the Board on 4 September 2025 during which the patent proprietor filed a single sheet showing the spinning and opening of fibres in the claimed spinning chamber. At the close of the oral proceedings the parties' requests were unchanged from point II. above.

VI. Claim 1 of the main request reads as follows (with feature numbering added as used by the proprietor in its grounds of appeal):

1 Air-jet type spinning device (4) comprising

1.1 a body (8) at least partially hollow which delimits a spinning chamber (12),

1.2 a fiber feeding device (16), facing said spinning chamber (12) so as to feed the fibers into the spinning chamber (12),

1.3 a spinning spindle (20) at least partially inserted in the spinning chamber (12) and fitted with a spinning channel (24) for the transit of yarn obtained from said fibers,

1.3.1 the spinning channel (24) having a main axis which defines a spinning direction (X-X), and

1.3.2 having a front input (28) for the introduction of the yarn in said spinning channel (24), wherein

1.4 the body (8) comprises at least one upper crown of holes (32) comprising at least two upper injection holes (36) which input a higher flow rate of air in the spinning chamber (12),

1.5 the body (8) comprises at least one lower crown of holes (40) comprising at least two lower injection holes (44) which input a lower flow rate of air in the spinning chamber (12),

1.6 wherein the upper injection holes (36) open into the spinning chamber (12) at a first point (48) upstream of the front input (28), with respect to a direction of advancement (F) of the yarn in the spinning channel (24),

1.7 wherein the lower injection holes (44) open into the spinning chamber (12) at a second point (56) downstream of the front input (28), with respect to a direction of advancement (F) of the yarn in the spinning channel (24),

characterized in that

1.8 said upper and lower crowns of holes (32,40) are fluidically connected to separate and independent air supplies.

Claim 1 of auxiliary request 1 reads as for claim 1 of the main request with the following feature appended:

"wherein a main axis (P') of the upper injection holes (36) intersects the main axis at a point (S) that is distant from said front input (28), with respect to the spinning direction, by an upper portion (52) between 0mm and 4mm,

wherein said upper injection holes (36) have a width varying between 0.5mm and 0.8mm."

Claim 1 of auxiliary request 2 reads as for claim 1 of the main request with the following feature appended:

"wherein a main axis (P'') of the lower injection holes (44) intersects the main axis at a point (I) that is distant from said front input (28), with respect to the spinning direction, by an lower portion (60) between 0.5mm and 3.5mm,

wherein said lower injection holes (44) have a width varying between 0.7mm and 1.1mm."

Claim 1 of auxiliary request 3 reads as for claim 1 of the main request with the following feature appended:

"wherein, with respect to a cross-sectional plane perpendicular to the main axis of the spinning channel (24), projections of said upper injection holes (36) and lower injection holes (44) are directed along tangential directions (T), tangent to a cylindrical side wall (64) of said spinning chamber (12)."

VII. The opponent's arguments relevant to the present invention may be summarised as follows:

Main request

Claim 1 lacked novelty over D1. The term 'air supplies' should be interpreted broadly and was anticipated by the air conduits 35, 36 of D1. Figs. 2 and 3 of the patent did not depict separate and independent air sources. Paragraph [0020] of the patent also failed to limit the understanding of 'separate air supplies' to mean separate air sources. The claimed 'separate and independent air supplies' should thus be interpreted simply as hardware suitable to supply air to the crowns individually and/or simultaneously during the spinning process.

The sheet showing the spinning and opening of fibres filed by the proprietor at oral proceedings before the Board should not be admitted.

The subject-matter of claim 1 lacked an inventive step starting from D1 and combining the teaching of D6 with this. Based on the sole differentiating feature over D1, the objective technical problem to be solved read 'how to improve the controllability of the airflow in the spinning process'. The paragraph bridging pages 13 and 14 of D6 disclosed both nozzles 9 and 11 of D6 being provided with independent air supplies (cf. Fig. 2 of D6). This was further corroborated by the full paragraphs on pages 4 and 5 of D6. D6 may be aimed at piecing of broken yarn, but it also unambiguously disclosed separate sources of air feeding the respective nozzles 9 and 11 for the purpose of spinning.

The auxiliary requests should not be admitted as these were late filed at the oral proceedings before the opposition division.

Auxiliary request 1

The subject-matter of claim 1 lacked an inventive step. The features newly added to claim 1 were arbitrary values lacking a demonstrable technical effect. In addition, the description of the patent was silent regarding a technical effect of the parameters and no evidence had been provided why they had a technical relevance not demonstrated by values outside the claimed range. Even considering the proprietor's alleged technical effect of promoting the bending down of the outer layer of yarn fibres, the location of the injection holes relative to the intersection point (S) was not defined such that, within the scope of claim 1, the injected air could impinge on the yarn fibres so as to bend these upwards rather than downwards. The alleged technical effect was thus not credible and the newly added features could not allow an inventive step to be acknowledged.

Auxiliary request 2

The subject-matter of claim 1 lacked an inventive step. The newly added features to claim 1 were arbitrary for the same reasons as presented for claim 1 of auxiliary request 1. No evidence had been provided of a technical effect being achieved in the claimed ranges of the distance (I) or the width of the lower injection holes. The claimed ranges were thus arbitrary and could not be credited with imparting an inventive step to the claimed subject-matter.

Auxiliary request 3

The subject-matter of claim 1 lacked an inventive step. 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. Even if it were not seen to be tangential to the wall of the spinning chamber, this was a minor modification for the skilled person in order to ensure smooth entry of air into the chamber. The skilled person would further improve the tangential airflow in the spinning chamber by adopting the tangential injection hole arrangement also for the upper crown of holes. D2 also disclosed tangential entry of injection air into the chamber (see Fig. 5) as did D3 (see Fig. 2), a simple copy-paste of the arrangement for the second crown of holes meeting the claimed subject-matter without exercise of an inventive step.

VIII. The proprietor's arguments relevant to the present decision may be summarised as follows:

Main request

The subject-matter of claim 1 was novel over D1. The expression 'separate and independent air supplies' was to be interpreted as requiring separate and independent air sources, i.e. the generators of the air which was lacking in D1. This was clear from the wording of claim 1 alone but also from paragraphs [0020] and [0048] of the patent.

The sheet depicting the spinning and opening of fibres filed at oral proceedings should be admitted. It merely served as an aid to explain how the fibres of the yarn were spun in the claimed spinning device.

The subject-matter of claim 1 involved an inventive step when starting from D1 and combining the teaching of D6 with this.

Based on the sole feature differentiating claim 1 over D1 (feature 1.8), the technical problem to be solved could be seen as 'how to optimise the working of the upper and lower crowns of holes in a synergistic way'. This was objective since the two separate air supplies enabled the claimed spinning device to fully independently regulate the flow rates and pressures of the air supplied to the upper and lower crown of holes. This further allowed the device to be adapted to different fibres, counts, lengths and environmental conditions of the spinning. Conversely, a single source of air supplying both crowns of holes would have an air volume limit with changes in the supply of air to one crown of holes impacting the supply to the other.

D6 did not provide a solution to the posed problem as it was primarily concerned with piecing broken yarn and the disclosure of the two independent air supplies was merely an incidental alternative embodiment of the disclosure. The provision of 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. D6 also disclosed both the 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. Further, the skilled person would not consider the claimed solution to the technical problem since many other more simple solutions were preferred.

The auxiliary requests should be admitted as these were filed as a reaction to the filing of D6, which had been filed on the date for last submissions prior to oral proceedings. The first opportunity to react to the late filed document was thus at oral proceedings.

Auxiliary request 1

In addition to feature 1.8, the newly added features to claim 1 were not known from D1. The claimed range of distance of the point (S) from the front input ensured that the yarn fibres were not bent too much by the impacting air flow whilst the claimed range of injection hole width was tailored to the necessary diverting power of the airflow, not too fine to cut the fibres and not too large to undesirably overly bend the yarn. The partial technical problem to be solved resulting from these features was thus 'how to spin the fibres efficiently'. These parameter ranges had been included in dependent claims as filed and so were deliberate and not arbitrary. They covered the range of material and environmental conditions faced by the spinning chamber. The point of intersection (S) was important, not the angle of the incident airflow, to ensure a desirable downward bending of the outer layer of fibres prior to twisting. This also ensured a controlled degree of interaction between the airflows from the upper and lower crowns of holes.

Auxiliary request 2

The newly added features of claim 1 were also not known from D1. The claimed range of distance of the point (I) from the front input ensured that a suitable distance to the upper crown of holes was maintained to achieve a desired twist quality whilst the claimed range of injection hole width ensured that a laminar airflow was achieved which also promoted twisting efficiency. The partial technical problem to be solved was thus 'how to spin the fibres efficiently'. The claimed ranges were included in dependent claims as filed and so were clearly not arbitrary, despite a lack of evidence in the patent as to the technical effect of the claimed ranges.

Auxiliary request 3

The subject-matter of claim 1 involved an inventive step. The newly added features to claim 1 synergistically promoted the twisting of the yarn fibres since both airflows entered the spinning chamber without turbulence. The partial technical problem to be solved could thus be seen as 'how to improve the swirling airflow in the spinning chamber'. The skilled person would not be guided by common general knowledge to modify the essentially tangential entry of the lower crown of holes into the spinning chamber of D1 (see Fig. 3) to the claimed entry at a tangent to a cylindrical side wall of the spinning chamber. Even if they were to make such a first modification, there was no motivation to further modify D1 in order to provide the tangentially oriented injection holes also for the upper crown of holes. Similarly, even if D2 (see Fig. 5) disclosed the lower crown of holes entering the spinning chamber tangentially to the cylindrical side wall of the spinning chamber, a further modification would be required to provide such tangential entry of the airholes also for the upper crown. The disclosure of D3 was broadly similar with the crown of holes nearest to the front input of the spinning channel entering the spinning chamber tangentially, yet a further modification of D1 would be required to provide such tangentially directed injection holes also for the crown of holes furthest from the front input.

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).

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the opposition division with the order to maintain the patent with claims 1 to 15 of auxiliary request 3 and a description to be adapted.

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