Résumé de Article 117 EPC pour la décision T2011/21 du 03.09.2024

In T 2011/21, during the oral proceedings which were held by videoconference, the "Sirona" child safety seat prior use was inspected remotely by the opposition division. The inspection was transmitted by videoconference to all parties with every party having been given the chance to direct the camera used for inspection to specific details of interest. Screenshots showing several relevant views and constructional details of the child safety seat "Sirona" were taken and attached to the protocol of inspection. Based on this taking of evidence, the opposition division concluded that claim 1 was novel over the public prior use "Sirona"; the inspected seat did not comprise the feature introduced in claim 1 of the auxiliary request 1, the remaining features were disclosed. The appellant (opponent) considered that the conclusion of the opposition division was based on a too narrow interpretation of the term “side wing” without evidence being provided in support. The appellant contested the correctness of the decision on the inspection per videoconference, even though it was requested in person in view of the complexity of the structure. The inspection per videoconference was detrimental to the appellant in the sense that they were prevented from presenting their arguments in the most convincing and effective way, unduly limiting their right to be heard. The appellant also requested a referral about applicability of G 1/21 to the departments of first-instance and to the procedure of taking evidence by inspection. The board considered that the opposition division erred in not granting the opponent's request to take evidence by inspection be made in-presence. The opponent's request was namely substantiated and in the board's view well-founded, in particular because the object to be inspected was a complex three-dimensional item. This error, however, did not constitute a substantial procedural violation. The decision of the opposition division to consider the subject-matter of claim 1 to be novel in view of the prior use was actually neither determined nor influenced to the detriment of the appellant by the fact that the inspection took place by videoconference and not in presence. The board had no reason to consider that the opposition would have arrived at a different result if the inspection had taken place in presence. Decisive was the claim construction approach, and the interpretation of the term "side wings" in the claim, which was extensively discussed with the parties. The erroneous interpretation made by the opposition division, in the board’s view, was an error of judgment not made in violation of the opponent’s right to be heard. The questions requested to be referred to the Enlarged Board were not relevant for deciding the present case since the erroneous interpretation adopted by the opposition division was irrespective of the format for the oral proceedings and the inspection.