T 0782/92 22-06-1994

1. The appeal complies with the requirements of Articles 106 to 108 and Rules 1(1) and 64 EPC. It is admissible.

2. Amendments

2.1. The current Claim 1 is based on the granted Claim 1, which comprises essentially the same subject matter as the originally filed Claim 1 supplemented by the insertion of the feature that the cylindrical second damper-mass member is disposed in the inner space of the damper hub with free spaces radially inside and radially outside the second damper-mass member along the whole axial length thereof thereby permitting its radial displacement relative to the connection portion of the hub. This additional feature is clearly shown in Figures 1, 7 to 9 and 14. The free vibration of the second damper-mass in the radial direction is also disclosed on page 18 lines 22 to 29 of the originally filed description.

The dependent Claims 2 to 13 are essentially repetitions of the originally filed and granted Claims 2 to 13, respectively.

In view of these assessments no objections under Article 123(2) or (3) EPC arise against the current Claims.

2.2. The description in the form as upheld by the Opposition Division is based on the granted description but additionally comprises a discussion of the alleged prior use shown in the evidence A5 and the prior art disclosed in D2.

Throughout the Opposition Proceedings the Respondent contested the public availability of the alleged prior use based on the evidence A5 and in the present appeal proceedings requested (main-request) that the discussion of the alleged prior use be deleted. In the Respondent's opinion no sufficient proof was submitted that this prior use was publicly available and therefore the alleged prior use could not be regarded as prior art in the sense of Article 54(2) EPC.

In respect of evidential support of the free availability of the damper shown in the drawing in accordance with A5 only the delivery note A6 from which can be derived that 15 dampers were delivered to Daimler Benz AG in Stuttgart, Germany, was presented by the Appellant.

However, no details are available about the conditions of the transaction, in particular whether this constituted a normal delivery of dampers for use in the production of vehicles or rather concerned a small batch of dampers intended for experimental or test purposes. In view of the relatively small number of dampers involved the latter appears to be the case.

In the Board's opinion such condition does not qualify for free availability of the knowledge provided by the evidence A5 since usually in the stage of development of a product cooperating parties observe rules of confidentiality which restrict the free transfer of knowledge to the public. In this context the Board also supports the Respondent's view that the absence of any evidence of secrecy in A6 cannot be taken as evidence that no confidentiality existed at all.

In an attempt to establish free availability of the damper shown in A5 the Appellant submitted that it is quite common in motor car industry to give details of parts developed by one supplier to another in order to obtain alternative price offers for these parts. Since the delivery note A6 did not contain any secrecy obligation it was considered "highly likely" that such practice had been followed in respect of the damper shown in A5.

In the Board's opinion these submissions are not suitable as proof of free availability of the damper shown in the drawing A5 either, in particular since any evidence that such a practice was indeed followed in the present case in which only 15 dampers were delivered, is lacking.

Moreover, the Appellant's argument in fact amounts to a further alleged prior use according to which not only the supplier of the damper shown in the drawing A5 (Carl Freudenberg) and receiving party (Daimler Benz AG) were in the possession of the technical details of the damper but also other, unknown suppliers. However, no evidence has been provided in support of such a further prior use.

Summarising, in the Board's opinion, substantial doubt has arisen in the present case whether the alleged prior use based on the evidence A5 and A6 was indeed publicly available before the priority date of the present patent. Considering that the burden of proof is with the Opponent, in particular to demonstrate beyond any reasonable doubt that the circumstances of alleged prior use allow the conclusion that the information concerned was freely available to the public and in the absence of unequivocal proof in this respect, the damper shown in A5 cannot be considered to belong to the prior art in accordance with Article 54(2) EPC and should, therefore, not be indicated as such in the description of the patent in suit.

3. Novelty

3.1. Novelty of the subject-matter of Claim 1 can be concluded because none of the cited prior art documents to be considered discloses a second damper-mass having a cylindrical shape, which is disposed concentrically in an inner space of the cylindrical portion of a damper hub along the whole length thereof and which is attached at one side to the hub by a resilient member being shaped to allow radial displacement of the second damper-mass relative to the hub.

3.2. The Appellant considered that the damper-mass 4 in the Figure of D2 constituted a second damper-mass essentially in accordance with the definition of the damper-mass of Claim 1 of the patent in suit.

However, the damper-mass 4 disclosed in D2 is not of cylindrical shape within the meaning of this term as used in the patent in suit but rather a ring shaped disk or plate. This ring is further not disposed in an inner space of a cylindrical portion of the damper hub and no indications are derivable from D2 that the damper-mass 4 is intended for damping bending vibrations.

Of course, because of its flexible connection with the hub the damper-mass 4 can also move in the radial direction but, due to the large area of support, clearly the amount of radial movement is limited to such an extent that the skilled person would not consider such a construction to be comparable to or anticipating a construction in which a member of cylindrical shape, this term as used in the patent clearly implying an axial length exceeding the axial extention of a ring shaped disk, is connected with one of its ends to the hub.

Although D2 refers in its introductory part of the description to damping of torsional and bending vibrations the disclosure remains entirely silent as to which damper-mass of the embodiment shown in the drawing is intended to dampen the bending vibrations and/or torsional vibrations. The problem to be solved by the damper arrangement of D2 relates essentially to the integration of the compensating mass and vibration damper-mass in order to reduce costs and volume of the damper (see page 2, lines 3 to 10).

However, in view of the fact that damper-mass 3 is longer in the axial direction of the damper it appears that rather this damper-mass, and not the damper-mass 4 relied upon by the Appellant, is intended to dampen bending vibrations.

4. Inventive step

4.1. The closest prior art in respect of the subject-matter of Claim 1 of the amended patent is considered to be the dual-type damper referred to in the description of the patent in column 2, lines 16 to 39. This conventional dual-type damper corresponds with the dual-type damper acknowledged in the precharacterising portion of Claim 1 of the amended patent.

This known dual-type damper, although capable of damping complicated vibration, is said not to be effective against vibration including both torsional and bending vibrations. It is therefore the object of the invention according to the patent to provide a dual-type damper which is capable of damping both torsional and bending vibration of a rotation axle, so as to reduce vibration and noise and nevertheless being of simple and compact construction (see column 2, lines 56 to 65 and column 3, line 60 to column 4, line 11 of the patent specification).

4.2. In the dual-type damper in accordance with Claim 1 of the amended patent, the first damper-mass member serves as a first vibration system for damping torsional vibration of the rotation axle and the second damper- mass member serves as a second secondary vibration system for damping bending vibration of the rotation axle.

4.3. The only prior art document cited that mentions damping of both torsional and bending vibrations is D2. However, as was already indicated hereabove, no details are disclosed as to which of the two damper-mass members is intended for damping bending vibration. Moreover, the construction of this known damper is substantially different when compared to the damper device defined in Claim 1 of the amended patent. In particular neither of the known damper-masses has a cylindrical shape within the meaning of the patent in suit nor is any of the damper-masses arranged inside of a cylindrical portion of the damper hub with free spaces radially inside and outside along the whole length thereof nor is any of the known damper-masses connected at one of the axial ends thereof only.

There are also no suggestions derivable from D2 to reconsider the shape and position of the damper-masses so as to arrive at the shape and position of the second damper-mass claimed in Claim 1 of the amended patent. The fact that D2 essentially deals with the provision of a compensating mass 7 in a combined construction with vibration damper-masses puts the configuration and position of damper-masses 3 and 4 also at subordinate level of importance in this prior art document.

4.4. The Appellant considered that the damper-mass 4 shown in the Figure disclosed in D2 in addition to damping torsional vibration would also dampen bending vibration because the sideward support of the mass 4 allowing radial movement of this mass. This damper mass would therefore meet the requirements as set out in Claim 1 of the amended patent.

Although indeed some damping of bending vibration will occur due to the damper-mass 4, it is immediately clear to the skilled person that in comparison to the arrangement of the second damper-mass defined in Claim 1 of the amended patent such damping is negligible if compared to the amount of radial movement achievable by the arrangement including a cylindrical second mass with free spaces on both radial sides as defined in Claim 1. Also in view of the different damping effects of the ring like damper-mass 4 when compared to the cylindrical damper-mass of the present patent, the Appellant's argument that the known mass 4 must be considered to be a cylindrical mass comparable to the second damper-mass defined in Claim 1, is not considered convincing.

4.5. The other documents, including the alleged prior use in accordance with documents A1 to A4, do not disclose more than what is already known from D2 and since the Appellant did not any longer rely on these documents and prior use the Board sees no reason to discuss these citations in detail.

4.6. The Board therefore comes to the conclusion that the subject-matter of Claim 1 in the form as upheld by the Opposition Division cannot be derived in an obvious manner from the cited prior art and accordingly involves an inventive step (Article 56 EPC). This Claim, together with dependent Claims 2 to 13 relating to particular embodiments of the invention in accordance with Rule 29(3) EPC, can thus form the basis for maintenance of the patent (Article 52(1) EPC).

5. In view of the conclusions arrived at in point 2.2 above the first paragraph of the insert in column 2, line 5 of the description must be deleted because no proof was given that the damper arrangement shown in the drawing A5 belongs to the prior art in accordance with Article 54(2) EPC and hence the contested paragraph is not in agreement with the provisions of Rule 27(1)(b) EPC.

6. Thus taking into account the amendments according to the main request, the patent and the invention to which it relates meet the requirements of the EPC and the patent as amended may be maintained in the form as requested in the Respondent's main request (Article 102(3) EPC).

Since the main request is allowable there is no need to consider the Respondent's auxiliary requests.