T 2186/19 (Fuel cell device/myFC AB) of 7.9.2021

European Case Law Identifier: ECLI:EP:BA:2021:T218619.20210907
Date of decision: 07 September 2021
Case number: T 2186/19
Application number: 10786458.9
IPC class: H01M 8/04
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 274 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Applicant name: myFC AB
Opponent name: -
Board: 3.3.05
Headnote: -
Relevant legal provisions:
RPBA2020 Art 013(1)
Keywords: Amendment to appeal case - amendment gives rise to new objections (yes)


Cited decisions:
Citing decisions:

Summary of Facts and Submissions

I. The appeal lies from the examining division's decision to refuse the patent application.

II. In its communication under Article 15(1) RPBA 2020, the Board expressed inter alia the preliminary opinion that the subject-matter of claim 1 of the then request did not meet the requirements of Article 123(2) EPC.

III. In order to overcome the objections under Article 123(2) EPC the appellant filed a new main request replacing the main request then on file.

IV. Claim 1 of this request, filed on 2 July 2021, reads:

"1. A fuel cell device (10) comprising a fuel cell assembly (5) with at least one polymer electrolyte membrane fuel cell, and a hydrogen delivery means for providing a hydrogen flow, wherein the device is provided with an electronic control circuit (9) for controlling the power drawn from the fuel cell assembly (5) and the power output from the device (10), and means (4) for pre-burning adapted to burn hydrogen entering the fuel cell assembly until the hydrogen flow is increased to a predetermined level and/or the oxygen concentration is decreased to a predetermined level, characterized in that

the means for pre-burning comprises at least one of the fuel cells in the fuel cell assembly (5), the electronic control circuit (9) being adapted to short-circuit the cell(s) over a constant or variable resistor in the fuel cell assembly (5) for pre-burning, and to switch the operation of said fuel cell(s) from pre-burning to power burning when said predetermined level(s) have been reached, and in that the fuel cell device (10) further comprises a hydrogen sensor (HS) at the outlet end of the fuel cell assembly (5) in the form of a sensor cell (6) which is short-circuited over a resistor (R5) and coupled to the electronic control circuit (9), wherein the electronic control circuit (9) is arranged to adjust the power drawn from the fuel cell assembly (5) based on a voltage signal of the sensor cell (6) indicating hydrogen flow in the fuel cell assembly (5), so that the power drawn corresponds to the hydrogen flow."

V. The appellant's arguments can be summarised as follows:

The new main request should be admitted.

The basis for the amendment which specifies that the hydrogen sensor is in the form of a sensor cell which is short-circuited over a resistor could be found on page 9, lines 8-11 and Fig. 3b of the application as originally filed. It was moreover implicit to the skilled reader that the sensor cell could only be a small fuel cell.

VI. The appellant requested that the decision under appeal be set aside and that a patent be granted on the request filed on 2 July 2021.

Reasons for the Decision

1. Admittance

1.1 Article 13(1) RPBA 2020 sets out that "any amendment to a party's appeal case after it has filed its grounds of appeal or reply is subject to the party's justification for its amendment and may be admitted only at the discretion of the Board". When exercising this discretion, inter alia the question of whether the amendment gives rise to new objections is to be taken into account.

1.2 The appellant filed the main request at issue after it had filed its grounds of appeal. This undoubtedly corresponds to an amendment of the party's appeal case. The question of admissibility of this request therefore lies within the discretion of the Board.

1.3 Claim 1 refers to a "hydrogen sensor (HS) at the outlet end of the fuel cell assembly (5) in the form of a sensor cell (6), which is short-circuited over a resistor (R5)".

The appellant indicated page 9, lines 8-11 and Fig. 3b of the application as originally filed as the basis for this amendment.

However, these references disclose a sensor cell which is a small fuel cell short-circuited over a resistor. In addition, the entire application does not disclose any other type of sensor cell.

The appellant argued that the skilled person would understand that a "sensor cell" could only be a small fuel cell.

This argument, however, is not convincing. Indeed, any hydrogen sensor in the form of a cell would come under this definition, not only sensors using the principle of a fuel cell.

Therefore this new amendment constitutes an intermediate generalisation and infringes Article 123(2) EPC.

1.4 Even the appellant's argument that the sensor cells referred to in the application at issue were the ones described in the document referenced on page 11, last paragraph of the description as originally filed, which was supposed to read "PCT/SE2008/050932", would not change this conclusion.

1.5 Notwithstanding the question of whether features from a referenced document may be used or referred to in the present case to interpret a claim at issue, claim 1 of this referenced document explicitly refers to the sensor cell as being a fuel cell.

1.6 In view of the above considerations, claim 1 of the present request therefore gives rise to new objections.

The Board thus exercises its discretion not to admit the main request into the proceedings (Article 13(1) RPBA 2020).


For these reasons it is decided that:

The appeal is dismissed.

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