T 3259/19 (Implantable hearing aid/MED-EL) 30-06-2022
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IMPLANTABLE HEARING AID SYSTEM
I. The appeal is against the decision of the examining division refusing the present European patent application on the grounds of, inter alia, added subject-matter (Article 123(2) EPC).
II. The appellant was summoned to oral proceedings before the board. A communication was issued under Article 15(1) RPBA 2020 including the board's preliminary opinion concerning added subject-matter (Article 123(2) EPC).
III. Oral proceedings before the board were held on
30 June 2022 by video link. At the end thereof, the board announced its decision.
IV. The appellant's (applicant) final requests were that the decision under appeal be set aside and that a patent be granted according to the claims of
- a main request subject to the appealed decision (then labelled "1st auxiliary request") and re-filed with the statement of grounds of appeal, or
- one of three auxiliary requests filed with the statement of grounds of appeal.
V. Claim 1 of the main request reads as follows (board's feature labelling):
(a) "A implantable hearing aid system, comprising,
(b) an external transmitter unit (101) having a transmitter (102) for transmitting signals to a hearing stimulation device (137) to stimulate a hearing organ (170) and a first connection portion (103);
(c) an implantable receiver unit (136) having a receiver (138) to receive a signal from the transmitter (102); the implantable receiver unit (136) having the hearing stimulation device (137);
(d) a rigid interconnection unit (104) having a first side (108) having an integral second connection portion (105) and a second side (120) at least partly provided with an adhesive component (109), and
(e) the first connection portion (103) and the second connection portion (105) forming a removably connectable mechanical connection,
characterised by
(f) the external transmitter unit (101) being supported on the first side of the rigid interconnection unit (104), the second side of the interconnection unit (104) being adhesively attachable to a skin (113) of a user (172) for attaching the external transmitter unit (101) to the user (172) relative the implantable receiver unit (136),
(g) wherein the first connection portion (103) is tiltably disconnectable from the second connection portion (105),
(h) and wherein the second connection portion (105) is non-centrically positioned on the first side (108) of the interconnection unit (104) toward a rear portion of the interconnection unit (104) when attached to the user".
VI. Claim 1 of the first auxiliary request includes all the features of claim 1 of the main request but with feature (f) replaced by the following feature (board's labelling and highlighting of the amendments vis-à-vis feature (f)):
(f') "the external transmitter unit (101)
being supported on the first side of the rigid
interconnection unit (104), the second side of
the interconnection unit (104) being adhesively
attachable to a skin (113) of a user (172) for
[deleted: attaching ]retaining the external transmitter unit
(101) [deleted: to ]on the user (172) relative the
implantable receiver unit (136) by adhesive,".
VII. Claim 1 of the second auxiliary request includes all the features of claim 1 of the first auxiliary request but with feature (h) replaced by the following feature (board's labelling and highlighting of the amendments vis-à-vis feature (h)):
(h') "[deleted: and wherein ]the second connection portion (105)
is non-centrically positioned on the first side
(108) of the interconnection unit (104) toward a
rear portion of the interconnection unit (104)
when attached to the user, and wherein the
implantable receiver unit (136) is fabricated of
MRI compatible material".
VIII. Claim 1 of the third auxiliary request includes all the features of claim 1 of the first auxiliary request but with feature (h) replaced by the following feature (board's labelling and highlighting of the amendments vis-à-vis feature (h)):
(h") "[deleted: and wherein ]the second connection portion (105)
is non-centrically positioned on the first side
(108) of the interconnection unit (104) toward a
rear portion of the interconnection unit
(104) when attached to the user, and wherein the
external transmitter unit (101) is rotatable in
relation to the interconnection unit (104)".
1. Technical background
1.1 The present application concerns implantable hearing aid system 100. It comprises, as shown in Figure 1 of the present application (reproduced below),
- an external part with transmitter unit 101 and interconnection unit 104
and
- an implantable part 136 with receiver 138.
FORMULA/TABLE/GRAPHIC
1.2 Transmitter unit 101 can be connected to interconnection unit 104 via first connection portion 103 which is mounted to second connection portion 105 of interconnection unit 104 via snapping, adhesive or magnetic means. In operation, transmitter unit 101 transmits signals to receiver 138. These signals allow vibrator 137 to produce sound that is audible by means of bone conduction through part 132 of a user's skull.
1.3 According to the invention, interconnection unit 104 is adhered to the skin behind the user's ear, so that the external part, once attached, is less likely to be torn off inadvertently.
2. Main request: claim 1 - added subject-matter
2.1 The board concurs with the conclusion drawn in Reasons 16.1 of the appealed decision regarding claim 1 of what was then labelled the "1st auxiliary request". This means that claim 1 of the present main request (cf. point IV above) adds subject-matter that extends beyond the content of the application as filed.
2.2 The board endorses in particular the examining division's assessment that there is no direct and unambiguous basis for the expression "integral" in feature (d) (see Reasons 16.1 of the impugned decision):
2.2.1 The examining division construed the expression "integral" in the context of feature (d) in the sense that second connection portion 105 is integral to rigid interconnection unit 104. While a skilled reader would indeed have readily adopted such an interpretation, there is no direct and unambiguous disclosure for it in the application as filed.
2.2.2 The board particularly agrees with the fifth, i.e. the penultimate,paragraph of Reasons 16.1 of the appealed decision. There, the examining division explained why the applicant's reference to lines 2 and 3 of page 15 of the description as filed and original Figures 3A to 3D was not convincing as regards a direct and unambiguous disclosure in the original application for the expression "integral".
2.3 The appellant revisited the disclosure of Figure 3A as filed and the associated part of the original description in the present appeal. It stated that the skilled reader would have understood the phrase "[i]n Fig. 3A the separated parts are shown before assembly in manufacturing" of lines 2 and 3 of original page 15 as excluding any prior assembly step. It concluded that, hence, second connection portion 105 must have been an integral part of interconnection unit 104 in original Figure 3A.
The board does not share the appellant's view.
This is because the skilled reader would have been aware, based on their common general knowledge, that an assembly often starts from pre-assembled components. These could be, for instance, delivered by a subcontractor. The application as filed does not directly and unambiguously teach, explicitly or implicitly, the components shown in Figure 3A as filed to constitute an exception in this respect. More importantly, Reasons 15.1 of the impugned decision already correctly observed that, if Figure 3A as filed were indeed to directly and unambiguously disclose an integral structure, the part of second connection portion 105 and the remaining part of interconnection unit 104 should have been uniformly hatched, without any separation line between those parts. Furthermore, in lines 24 to 31 of page 12 of the description as filed the interconnection unit 104 is a double-sided adhesive sheet having connection portions 105 and 106 as its adhesive sides. This alternative points away from an "integral" structure.
2.4 As a result, claim 1 of the main request does not comply with Article 123(2) EPC.
3. First to third auxiliary requests: claim 1 - added subject-matter
3.1 Features (f'), (h') and (h") (see points VI to VIII above) do not remedy the deficiency mentioned for claim 1 of the main request in point 2 above, neither taken by themselves nor in combination.
3.2 Hence, also the first, second and third auxiliary requests are not allowable under Article 123(2) EPC.
For these reasons it is decided that:
The appeal is dismissed.