T 2563/19 30-05-2022
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Fat/meat grading method and system
I. The appeal was filed by the appellant (opponent) against the interlocutory decision of the opposition division finding that, on the basis of the auxiliary request 1, the patent in suit met the requirements of the EPC. Amongst other things, the opposition division decided that the subject-matter of this request involved an inventive step.
II. Oral proceedings before the Board were duly held on 30 May 2022.
III. The appellant (opponent) requested that the decision under appeal be set aside and that the patent be revoked in its entirety.
IV. The respondent (patent proprietor) requested that the appeal be dismissed (maintenance of the patent in the version upheld by the opposition division) or in the alternative that the patent be maintained according to one of auxiliary requests 1 to 5, A, 1A to 5A, B, 1B to 5B, all filed with the respondent-proprietor's reply to the appeal. In addition, the respondent requested that document E8 be not admitted into the proceedings.
V. The independent claims of the main request (auxiliary request 1 in opposition) read as follows, with feature references in square brackets added to claim 1 by the Board:
"1. [M1] Method of processing of meat trim products, [M2] where trim products are supplied as a sequence of collections of trim (COTs), each collection of trim (COT) comprising a plurality of trim products, whereby
- [M3] a fat/meat relationship for a collection of trim (COT) is measured,
- [M4] a collection of trim (COT) is transferred to a selected station (24) by a separator (20), controlled by a controller (50, 51, 52), and whereby
- [M5] a batch is completed at a selected station (24) on the basis of data for said fat/meat relationship, said batch comprising collections of trim (COTs) and fulfilling a predetermined criterion regarding a total fat/meat relationship,
characterized in that
[M6] measured and/or calculated data including data relating to the fat/meat relationship required to complete said batch at said selected station (24) is provided as a feedback data to a trim source which supplies collections of trim (COTs),
[M7] where the trim source, in response to said feedback data, supplies one or more collections of trim (COTs) with appropriate fat/meat relationship required to complete said batch."
"3. System for processing of meat trim products, wherein trim products are supplied to the system in a sequence of collections of trim (COTs), each collection of trim (COT) comprising a plurality of trim products, said system comprising
- a trim parameter measuring apparatus (TPMA) (10) designed for measuring the fat/meat relationship for a collection of trim (COT),
- a separator (20) for transferring a collection of trim (COT) to a selected station (24), and
- a controller (50, 51, 52) for controlling the separator (20) to complete a batch at a selected station (24), based on input from said trim parameter measuring apparatus (TPMA) (10), said batch comprising collections of trim (COTs) and fulfilling a predetermined criterion regarding a total fat/meat relationship,
characterized in that said system is designed for feeding measured and/or calculated data including data relating to the fat/meat relationship required to complete said batch at said selected station (24) as a feedback data to a trim source which supplies collections of trim (COTs), where the trim source, in response to said feedback data, supplies one or more collections of trim (COTs) with appropriate fat/meat relationship required to complete said batch."
VI. In the present decision, reference is made to the following documents:
D1: WO2009/102457 Al
E8: Ian Eustace "In-line chemical lean analysis, sorting and blending investigation" Project PRTEC.036, report prepared for D. Doral, Meat & Livestock Australia, March 2006.
VII. The appellant-opponent's arguments can be summarised as follows:
The subject matter of claim 1 of the main request lacks an inventive step over the combination of D1 with the skilled person's general knowledge. This general knowledge includes providing feedback in meat processing, as illustrated by E8, which should be admitted into the proceedings. Claim 3 of the main request lacks inventive step for the same reasons as apply to claim 1 and even more so because its characterising features impose no limitation on the claimed system.
VIII. The respondent-proprietor's arguments can be summarised as follows:
The opposition division correctly found that the subject matter of the independent claims of the main request is not rendered obvious by the combination of D1 and the skilled person's general knowledge. E8 is late filed and not relevant so it should not be admitted into the proceedings.
1. The appeal is admissible.
2. Introduction
The invention concerns the processing of meat trim products (see published patent specification, paragraphs [0001] to [0005]). Trimming meat results in a primary cut, fat and trim products (trim). Trim is a combination of meat and fat or secondary meat cuts. It is normally classified in categories according to its fat/meat ratio and is typically used for various purposes, such as making mincemeat, where often a specific fat/meat ratio is required (see published patent specification, paragraphs [0006] to [0008]).
3. Main request, claim 1, inventive step starting from D1 with the skilled person's general knowledge
3.1 Before looking in detail at inventive step, the Board finds it useful to consider the interpretation of certain claim features.
3.1.1 The claim requires that the fat/meat relationship for a collection of trim (COT) is measured (feature M3) and a collection of trim is transferred to a selected station (be there one or more) by a separator controlled by a controller (feature M4). M4 is the only feature defining how each COT is assigned to a station: it is carried out by a separator under the control of a controller, but the feature does not explain any criterion for the separation. The next feature (M5) requires that a batch is completed at a selected station, on the basis of data for the fat/meat relationship, the batch comprising collections of trim and fulfilling a predetermined criterion regarding a total fat/meat relationship.
3.1.2 The characterising features define that measured and/or calculated data including data related to the fat/meat relationship required to complete the batch is fed back to the trim station (feature M6), the latter responds by sending appropriate trim (feature M7).
3.1.3 The appellant-opponent has argued that the claim wording also encompasses the situation where the feedback to the trim source defined in the first characterising feature (M6) need be nothing other than a reminder to the trim source to continue to supply COTs meeting the criterion of the batch. The Board disagrees with this interpretation.
3.1.4 In accordance with well established jurisprudence the Board reads the claim wording including feature M6 with a mind willing to understand, using normal reading skills, by giving terms their usual meaning (unless there is good reason not to do so) and reading them contextually. Feature M6 defines that measured and/or calculated data relating to the fat/meat relationship required to complete said batch at said selected station (24) is provided as a feedback data to a trim source. The term feedback in its normal meaning refers to the process of "modification, adjustment, or control of a process or system .... by a result or effect of the process, esp. by a difference between a desired and an actual result" (OED). In that context "feedback" often refers to the system output that is routed back to the input to change the system response. In feature M6 the feedback data is formed by measured and/calculated data including data relating to the fat/meat content required to complete the batch - this represents the system output - and is provided to the trim source, which represents the input of the system. For the skilled reader at least, feature M6 thus already encapsulates a complete feedback loop. Such a feedback loop is only meaningful if it is meant to change the response of the system, in this case action of the trim source (and separator) to form batches. This presupposes that the system response is not what it should be because batches are not being formed as desired in accordance with the predetermined criterion. This is possible, for example, if the trim source is not providing COTs with fat/meat relationship at the requisite accuracy. Indeed, the feedback data is defined as being measured or calculated, as would be expected in a feedback loop as applied to fat/meat based batching, and which in this context can be understood (by those with a mind willing to understand) as an indication of the actual deviation of the fat/meat relationship from the predetermined criterion of feature M5. In this regard, the Board is not convinced that the feedback data could be understood as corresponding to the desired fat/meat relationship determined on the basis of values measured or calculated in a previous test or calibration run, and thus pre-determined as the appellant has argued. In that case the system would be merely repeating back to the trim source the batching criterion, information the trim source is already working on and which would not change the way it is trimming. Clearly, that does not correspond to a feedback loop as effectively required by feature M6. Therefore, the only meaningful reading of the feedback data to be calculated or measured is that it pertains to the batch that is being built up at the present time, rather than to some previous test batch. With this in mind, the data fed back can only be real time data, provided whilst the process is running, that tells the trim source what is needed to complete the batch at a given moment.
3.2 Turning now to D1, it discloses a method of processing meat trim products (see title and abstract). It is common ground that D1 discloses the preamble features of claim 1. In particular, trim is pre-sorted into containers according to an estimate of meat/fat ratio (lean point in D1's words - see figure 1, step 130). As explained in paragraph [0048] with figures 1 and 2, these containers empty onto a conveyor, thus they are supplied as a sequence of collections of trim (COTs), each comprising a plurality of trim products. Their fat/meat relationship is then measured (see figure 1, step 140). After this (figure 1, step 150), items are transferred to a selected station (combination bin in D1's terms) by a separator (see lower part of figure 2) controlled by a controller (microprocessor - see paragraph [0050] with figure 7) according to fat/meat relationship (lean point). Thus, a batch in the station comprises collections of trim (COTs). Because each COT is directed to the appropriate bin according to its fat/meat relationship, a batch is completed based on fat/meat data to achieve a total fat/meat relationship for that container as claimed (see for example paragraph [0040]).
3.3 It is not in dispute that D1 does not disclose the characterising features of claim 1 (feedback features M6 and M7). In D1 (see for example figures 1, 2 and 7), the fat/meat relationship (lean point) of trim from the trim source is simply determined so that it can be sorted into an appropriate bin.
3.4 According to well established jurisprudence, the technical problem addressed by the invention should normally start from the problem described in the patent, see Case Law of the Boards of Appeal, 9th edition, 2019 (CLBA) I.D 4.3.2.
3.4.1 The opposition division considered (see impugned decision, reasons 8.1) the objective technical problem to be one of enhancing automation and flexibility of the batching process (cf. published patent specification, paragraphs [0014] and [0043]). In the Board's view, although the patent mentions both these effects, it does not do so in conjunction with the differing feature (feedback). Rather, in this respect the patent discloses (see published patent specification, paragraphs [0046] and [0047]) that feedback as claimed allows optimisation of the building up and completion of batches. This can be considered in terms of increased accuracy or overall efficiency of the system, cf. patent specification, paragraph [0053]. There is no indication in the patent that this is to be understood in relation to timing required to build up a batch or the ability of the system to fill up different batches at an equal pace as the appellant-opponent has argued.
3.4.2 Therefore, in accordance with the established jurisprudence outlined above, the Board considers that the objective technical problem can be formulated broadly as how to modify the method of D1 in order to optimise the building up and completion of batches.
3.5 In the Board's view, faced with the objective technical problem (optimisation) the skilled person, here an engineer working in meat processing, would not modify D1 by adding feedback as claimed, as a matter of obviousness.
3.5.1 In this regard the Board agrees with the appellant-opponent that in the meat processing industry, the concept of feedback as such, belongs to the skilled person's general knowledge. However, its application is always targeted and requires recognition of system error and an understanding of its causes. As is apparent from figure 2 of D1, its batching scheme features a high level of differentiation of fat/meat ratios, which must be predicated on a high degree of confidence of the trimming process. The Board is therefore unconvinced that if the skilled person wanted to further optimize batch build-up and completion they would consider improving the trimming per se, much less doing so using feedback from the batching output. Rather, they would consider alternative optimization strategies.
For example D1 uses pre-sorting of trim to increase efficiency and accuracy of subsequent sorting (see paragraph [0034], [0048], figure 5) by having multiple sorting steps with the fat/meat ratio being analysed at more than one stage. The skilled person might therefore consider a more optimal way of pre-sorting. In another arrangement (see paragraph [0048]), D1 suggests optimising the end product by measuring the total fat/meat ration for each batch and then mixing different stored batches to reach a precise desired ratio. Finally, the degree of differentiation of the batch fat/meat ratios might be changed to better match build- up and completion specifications. However, none of these optimisations point in the direction of providing any kind of feedback, let alone of the data claimed (fat/meat relationship required to complete a batch).
From all of the above, the Board is of the opinion that D1 combined with the skilled person's general knowledge does not render the subject matter of claim 1 obvious.
4. Main request, claim 3, inventive step
The appellant-opponent has argued that the subject matter of the system claim 3 does not identify the specific adaptations necessary to realize the method of claim 1 . Rather, so the appellant argues, the characterising features (feedback and response) merely specify that means should be suitable to carry out the relevant method steps but impose no clear limitation on the claimed system.
The Board disagrees. The features of claim 3 translate the method features of claim 1 in the usual manner to corresponding means defined by their function. These correspond exactly to those of claim 1 expressed in terms of system features. The normal reading of such a formulation is that the means must be specifically adapted to carry out that function. Thus the first characterising feature states that the system is designed for feeding [...] feedback to the trim source, which the skilled person using their normal reading skills interprets as a system specifically designed for feeding [back] feedback as being specially adapted to do so such that in operation it carries out that function. Similarly, that the trim source in response to [this] feedback supplies one or more [suitable] COTs, can only mean that the system is adapted to respond to the feedback in the way claimed. Thus the appellant-opponent's argument that the characterising feature of claim 3 imposes no limitation on the claimed subject matter is moot.
Therefore, the Board finds that the subject matter of claim 3 is not rendered obvious by the combination of D1 and the skilled person's general knowledge for the same reasons as apply to claim 1.
5. Admittance of document E8
Document E8 was filed with the grounds of appeal and thus outside the opposition period. It is therefore late filed and subject to the discretion afforded by Article 114(2) EPC and Article 12(4) RPBA 2007. In exercising their discretion boards consider, amongst other factors, whether or not late filing is justified by developments in the procedure, the need for procedural economy and relevance (see Case Law of the Boards of Appeal, 9th edition, 2019 (CLBA) V.A. 4.4.2.b).
At the oral proceedings before the Board, the appellant-opponent explained that E8's only additional contribution to its case was to demonstrate that feedback belonged to the skilled person's general knowledge. Since, as has already been stated, the Board accepts this to be true, E8 adds nothing to the discussion on inventive step. Therefore, the Board decided not to admit E8 into the proceedings.
6. From all of the above, the Board concludes that the opposition division did not err in finding the subject matter of the independent claims of the main request to involve an inventive step. As the appellant-opponent raised no other issues, their appeal fails and the Board must dismiss it.
For these reasons it is decided that:
The appeal is dismissed.