T 0258/84 (Portable hyperbar box structure) 18-07-1986
Documents cited late
Non-referral to the first instance/absence of comments by respondent
I. European patent application No. 80 400 930.6 was filed on 23 June 1980 claiming the priority of an earlier French application of 27 June 1979 and led to the grant of European patent No. 0 022 012 on 11 May 1983 on the basis of five claims. The main claim reads as follows:
1. Transportable hyperbar box structure consisting of a single seater box structure (1) that can accommodate an injured person lying down and, an auxiliary compartment (5) designed for a nurse, the which auxiliary compartment (5) has one single opening (9) blanked off by one end of the single-seater box structure, the which end is assembled to the opening by a detachable and tight fastening, characterised in that the said single-seater box structure has an access which is closed tight by a detachable blanking plug (11) and which is located outside the single-seater box structure (1) which is assembled with the auxiliary compartment (5), that the blanking plug (11) is located inside the auxiliary compartment (5) when the single- seater box structure (1) is assembled with the auxiliary compartment (5), and that the single-seater box structure (1) acts as door blanking off the opening (9).
II. The appellant (opponent) filed notice of opposition on 31 January 1984 to the European patent and asked that it be revoked, arguing that its subject-matter was neither new nor inventive given the state of the art represented by the document "Der Sonderdruck aus dem Dräger-Heft 261/262 (Oktober 1965 - März 1966)".
III. By decision of 26 September 1984 the Opposition Division rejected the opposition on the grounds that neither the document cited by the opponent nor any of the documents cited in the European search report or during examination revealed a pressurised enclosure whose only door consisted solely of the second pressurised enclosure, as claimed in Claim 1 of the contested patent.
IV. On 7 November 1984 the appellant (opponent) filed an appeal against that decision, at the same time paying the prescribed fee for appeal. The statement of grounds for appeal was received at the EPO on 20 November 1984.
V. In its statement the appellant asked for the decision of the Opposition Division to be set aside and the contested patent to be revoked. In support it submitted two further documents, both brochures: "Dräger Druckkammer - Baukastensystem" (first edition, March 1975) (document D7) and "Drägerheft" No. 298, Oktober- Dezember 1974 (Document D8), which describe and depict a transportable hyperbar box structure compared with which the subject-matter of Claim 1 of the contested patent was claimed not to be new.
VI. The respondent (patent proprietor) replied neither to the statement of grounds for appeal nor to the communication from the Board of Appeal which, in accordance with Article 110(2) EPC, the rapporteur sent to the parties on 26 February 1986 expressing therein reservations about the patentability of the subject-matter of Claim 1.
1. The appeal complies with Articles 106 to 108 and Rule 64 EPC and is therefore admissible.
2. The two new documents (D7, D8) cited for the first time by the appellant in his statement of grounds for appeal which he claimed prejudiced the novelty of Claim 1, are both brochures published by the appellant himself of whose existence he should not in the normal course of events have been unaware at the time of filing the statement of grounds for opposition.
3. Pursuant to Article 114(2) EPC the Board examined whether or not it should take account of these new documents which were submitted late without good reason. Given their considerable relevance, the Board felt bound, pursuant to Article 114(1) EPC, to consider them of its own motion. Moreover, in the absence of any objection on the part of the respondent (who replied neither to the statement of grounds for appeal nor to the communication sent by the rapporteur) as regards either the relevance of the new documents or their late submission, the Board considered it inappropriate in such a case to avail itself of the power conferred on it by Article 111(1) EPC to refer the matter to the Opposition Division, which in the normal course of events it would have done had the respondent (patent proprietor) filed observations or so requested, so as not unfairly to deprive the latter of an examination of the patentability of his invention, in the light of the new documents cited, by two judicial departments (see Decision T 273/84 dated 21 March 1986; not published). The Board therefore examined the substance of the appeal.
4. Documents D7 and D8 show a unit construction system comprising components from which various configurations of hyperbar box structures can be formed ("Druckkammer-Baukastensystem"). Shown separately on page 3 of document D7 are the various components of this system which essentially comprises one large main chamber (1), one smaller secondary chamber (2) and a single-seater chamber (9). This system is designed for use both in diving and for medical or rescue purposes and has the following essential features (see page 2 of document D7): (i) any desired combination of the various components can be chosen according to the purpose sought,
(ii) the apparatus is light and transportable. The secondary chamber (2) may be used as an entrance lock to the main chamber (1) or may be used without the main chamber (1) which is replaced by a blanking plug (10) (see illustration on page 2 and description page 4, first paragraph, and page 5, second paragraph, of document D7). In both cases the secondary chamber (2) may be attached to the single-seater chamber (9) by means of an adaptor ring (3) ("Adapterring"). When the blanking plug (10) is bolted on to one of the openings of the auxiliary chamber (2) whose other opening is fitted with the adaptor ring (3), the latter chamber forms an independent compartment similar to the auxiliary compartment (5) described in the contested patent to which may be attached a single-seater chamber with a blanking plug inside the auxiliary compartment, the single-seater chamber acting as a door blanking the opening to the auxiliary compartment. Consequently, this assembly has all the features of the transportable hyperbar box structure which is the subject-matter of Claim 1 of the contested patent which is therefore not patentable since it lacks novelty (Articles 52(1) and 54 EPC).
5. Since, even in the alternative, the respondent (patent proprietor) failed to submit any other independent claim and since dependent Claims 2 to 5 must follow the same fate as Claim 1 to which they are attached, the contested patent must be revoked in its entirety.
For these reasons, it is decided that:
1. The decision of the Opposition Division of the European Patent Office dated 26 September 1984 is set aside.
2. European patent No. 0 022 012 is revoked.