6.9. Post-published standard

In T 1290/23 the patent concerned an "AP" and an "STA" communicating with each other as well as respective methods. The board was not convinced that the reference to "IEEE Standard 802.11ax" made in claim 1 should be decoupled from the remaining features in the manner suggested by the respondent (patent proprietor). The patent proprietor indeed alleged that the issue of whether or not the AP of claim 1 complied with IEEE Standard 802.11ax was not defined by claim 1; only the preamble of claim 1 referred to IEEE Standard 802.1 1ax. The rest of the features of claim 1 did not contain such a reference. According to the patent proprietor, the AP could coexist in the wireless network with other devices operating in accordance with IEEE Standard 802.11ax, without the need to be itself compliant with this. Moreover, the gaps in D5 could be easily filled. As indicated by the opponents, the "AP" was a key element of the "wireless network". It could not "facilitate multi-user communication" without being "in compliance with IEEE Standard 802.11ax". Nor was compliance with the earlier IEEE Standard 802.11ac sufficient to satisfy this requirement. Thus, in the board's view an AP "for facilitating multi-user communication in a wireless network operating in compliance with IEEE Standard 802.11ax" should at the very least operate in conformity with the known principles - however broad - defined for the upcoming IEEE Standard 802.11ax, at the latest, by the patent's date of filing. The opponent did not deny that D5 (a pre-version of the Draft of the IEEE Standard 802.11ax) was available online at the opposed patent's filing date. However, D5 included several TBD ("To Be Defined") statements. This showed that numerous features of the IEEE Standard 802.11ax had not been defined at the time of its publication. All subsequent drafts of the same standard had been published after the filing date. The board concluded that features were subject to changes from version to version (of a standard), but the gaps in the teaching of D5 were not small details that could be finalised using arbitrary choices or straightforward analogies with preceding versions. On the contrary, the skilled person would be expected to develop on their own an operational AP on the basis of a very early and incomplete specification. The board considered that this endeavour could not succeed without undue burden. The first-instance decision was set aside and the patent revoked.