T 1421/20 () of 2.11.2020

European Case Law Identifier: ECLI:EP:BA:2020:T142120.20201102
Date of decision: 02 November 2020
Case number: T 1421/20
Application number: 03023968.5
IPC class: G09G5/36
H04N5/00
H04N5/44
G06T1/20
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 460 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Network environment for video processing modules
Applicant name: Avago Technologies International Sales Pte. Limited
Opponent name: -
Board: 3.4.03
Headnote: -
Relevant legal provisions:
European Patent Convention 1973 Art 54(1)
European Patent Convention 1973 Art 84
RPBA2020 Art 012 (2020)
RPBA2020 Art 013 (2020)
Keywords: Novelty - (no)
Auxiliary Requests - amendment to a party's case - raising new issues - undue burden - not admitted
Catchwords:

-

Cited decisions:
-
Citing decisions:
T 1780/17
T 2692/18

Summary of Facts and Submissions

I. The appeal is against the decision of the examining division refusing the European patent application No. 03 023 968.5. In the impugned decision, the examining division held that the Main Request, as well as Auxiliary Requests 1 to 5 and 12 lacked clarity (Article 84 EPC 1973). Auxiliary Request 12 did not involve an inventive step (Article 56 EPC 1973), either. In addition, the examining division, exercising its discretion under Rule 137(3) EPC, did not admit Auxiliary Requests 6 to 11 into the procedure on the grounds that they were late filed and prima-facie did not overcome the objections under Article 84 EPC 1973.

II. The appellant (applicant) requested initially in the grounds of appeal that the decision under appeal be set aside and that a patent be granted on the basis of the Main Request or one of Auxiliary Requests 0a, 0b, 0c, 1a to 5a or 6 to 12. In the grounds of appeal the appellant also stated that Auxiliary Requests 1 to 5 filed in preparation for the oral proceedings before the opposition division are replaced by Auxiliary Requests 1a to 5a.

After the board issued summons to oral proceedings and its preliminary opinion, the appellant reinstated auxiliary requests 1 to 5, and filed additional auxiliary requests 0a', 0b', 0b'-1 and 0c'.

III. At the end of the oral proceedings before the board, the requests of the appellant were that the decision under appeal be set aside and that a patent be granted on the basis of one of the requests, in the following order: Auxiliary Requests 0a, 0a', 0b, 0b', 0b'-1, 0c, 0c', Main Request, Auxiliary Requests 1a, 1, 2a, 2, 3a, 3, 4a, 4, 5a, 5, 6, 7, 8, 9, 10, 11 and 12 (see appellant's letter of 1 October 2020, point 5 on the first page), whereby:

- Auxiliary Requests 0a, 0b and 0c were filed with the statement of the grounds of appeal.

- Auxiliary Requests 0a', 0b', 0b'-1 and 0c' were filed with appellant's letter of 1 October 2020.

- Auxiliary Requests 1a to 5a were those mentioned in the statement of the grounds of appeal, and were subsequently filed with the appellant's letter of 1 October 2020.

- The Main Request was filed with appellant's letter of 23 September 2019 and underlies the impugned decision.

- Auxiliary Requests 1 to 5 were filed with appellant's letter of 23 September 2019 and underlie the impugned decision, and were re-filed with the appellant's letter of 1 October 2020.

- Auxiliary Requests 6 to 11 were filed with the appellant's letter of 22 October 2019 and were not admitted by the examining division (see point I above).

- Auxiliary Request 12 was filed during the oral proceedings before the examining division.

IV. Claim 1 of Auxiliary Request 0a' has the following wording:

A network for processing data adapted to form at least one display pipeline therein by selecting and concatenating at least two nodes from a plurality of nodes (516A, 516B, 616A-616I) in the network together, wherein the at least one display pipeline has an independent data rate that is independent of at least one other display pipeline in the network and the network comprises a flow control module adapted to enable the independent data rate of the at least one display pipeline.

Claim 6 of Auxiliary Request 0a' has the following wording:

A method of processing data using a network comprising: forming at least one display pipeline by selecting and concatenating at least two nodes from a plurality of nodes (516A, 516B, 616A-616I) in the network, wherein the at least one display pipeline has an independent data rate that is independent of at least one other display pipeline in the network and is enabled by a flow control module; and processing the data using said at least one display pipeline.

V. Claim 1 of the Main Request has the same wording as claim 1 of Auxiliary Request 0a' except that the term "of the at least one display pipeline" is omitted at the end of the claim.

Claim 6 of the Main Request is worded as follows:

A method of processing data using a network comprising: forming at least one display pipeline by selecting and concatenating at least two nodes from a plurality of nodes (516A, 516B, 616A-616I) in the network, wherein the at least one display pipeline has an independent data rate enabled by a flow control module; and processing the data using said at least one display pipeline.

VI. Claim 1 of Auxiliary Request 12 is worded as follows (differences with respect to claim 1 of Auxiliary Request 0a' are marked by the board):

A [deleted: network] display engine (416, 500, 600) for processing data adapted to changeably form at least one display pipeline therein in real time depending on network requirements by selecting and concatenating at least two network nodes from a plurality of network nodes (516A, 516B, 616A-616I) that process video information [deleted: in the network] together by chaining said at least two network nodes together using at least one network module (520, 620M, 620N) to switch between the at least two network nodes, thus varying or changing the at least one display pipeline[deleted: , wherein the at least one display pipeline has an independent data rate that is independent of at least one other display pipeline in the network and the network comprises a flow control module adapted to enable the independent data rate of the at least one display pipeline].

VII. Claim 1 of Auxiliary Request 0b' has the same wording as claim 1 of Auxiliary Request 0a' with the addition of the feature "and the data is transferred using a pull mode" at the end of the claim.

VIII. Claim 1 of Auxiliary Request 0b'-1 has the same wording as claim 1 of Auxiliary Request 0a' with the addition of the feature "and, the network further adapted to support a pull data scheme wherein the data is transferred using a pull mode so that the data is supplied from the network to an output at a rate it is requested" at the end of the claim.

IX. Claim 1 of Auxiliary Request 0c' has the following wording (differences from claim 1 of Auxiliary Request 0a' are marked by the board):

A network for processing data adapted to changeably form at least one display pipeline therein by selecting and concatenating at least two nodes from a plurality of nodes (516A, 516B, 616A-616I) in the network together by chaining multiple nodes of the plurality of nodes together in real time using at least one network module (520, 620M, 620N) to switch which ones of the plurality of nodes are concatenated together to change the at least one display pipeline, wherein the at least one display pipeline has an independent data rate that is independent of at least one other display pipeline in the network and the network comprises:

a flow control module adapted to enable the independent data rate[deleted: of the at least one display pipeline].

X. Claim 1 of Auxiliary Request 0a has the following wording (differences from claim 1 of Auxiliary Request 0a' are marked by the board):

A network for processing data adapted to form at least one display pipeline therein by selecting and concatenating at least two nodes from a plurality of nodes (516A, 516B, 616A-616I) in the network together, wherein [deleted: the at least one display pipeline has an independent data rate that is independent of at least one other display pipeline in the network and] the network comprises a flow control module adapted to enable [deleted: the] an independent data rate of the at least one display pipeline.

XI. Claim 1 of Auxiliary Request 0b has the same wording with claim 1 of Auxiliary Request 0a with the addition of the feature "and the data is transferred using a pull mode" at the end of the claim.

XII. Claim 1 of Auxiliary Request 0c has the following wording (differences from claim 1 of Auxiliary Request 0a marked by the board):

A network for processing data adapted to changeably form at least one display pipeline therein by selecting and concatenating at least two nodes from a plurality of nodes (516A, 516B, 616A-616I) in the network together by chaining multiple nodes of the plurality of nodes together in real time using at least one network module (520, 620M, 620N) to switch which ones of the plurality of nodes are concatenated together to change the at least one display pipeline, wherein the network comprises:

a flow control module adapted to enable an independent data rate [deleted: of the at least one display pipeline].

XIII. Claim 1 of Auxiliary Request 1a has the same wording as claim 1 of Auxiliary Request 0a with the addition of the term "dynamically" in the feature "by dynamically selecting and concatenating at least two nodes...".

XIV. Claim 1 of Auxiliary Request 2a has the following wording (differences from claim 1 of Auxiliary Request 0a are marked by the board):

A network for processing data adapted to changeably form at least one display pipeline therein by selecting and chaining, coupling or concatenating at least two nodes from a plurality of nodes (516A, 516B, 616A-616I) in the network together, depending on the network requirements, on the fly i.e. in real time, wherein the network comprises a flow control module adapted to enable an independent data rate of the at least one display pipeline.

XV. Claim 1 of Auxiliary Request 3a has the same wording as claim 1 of Auxiliary Request 0a with the addition (underlined by the board): "..to form at least one display pipeline therein by selecting and concatenating at least two nodes from a plurality of nodes (516A, 516B, 616A-616I) in the network together using at least one network module (520, 620M, 620N)...".

XVI. Claim 1 of Auxiliary Request 4a has the following wording (differences from claim 1 of Auxiliary Request 0a are marked by the board):

A network for processing data adapted to form at least one display pipeline therein by dynamically selecting and concatenating at least two nodes from a plurality of nodes (516A, 516B, 616A-616I) in the network together by chaining said at least two nodes together using at least one network module (520, 620M, 620N) to switch between the at least two nodes, thus varying the at least one display pipeline, wherein the network comprises a flow control module adapted to enable an independent data rate of the at least one display pipeline.

XVII. Claim 1 of Auxiliary Request 5a has the same wording as claim 1 of Auxiliary Request 4a with the addition of the feature "wherein the network further comprises a handshaking protocol adapted to generate the at least one display pipeline" at the end of the claim.

XVIII. Claim 1 of Auxiliary Requests 1 to 5 corresponds to claim 1 of Auxiliary Requests 1a to 5a respectively, with the addition (in all Auxiliary Requests 1 to 5) of the definition that the at least one display pipeline "has an independent rate that is independent from at least one other display pipeline in the network".

XIX. The wording of the claims of the Auxiliary Requests 6 to 11 is not relevant for this decision.

XX. Reference is made to the following document:

D1: WO 99/13637 A2

XXI. In its preliminary opinion, issued with the summons to oral proceedings, the board indicated that it did not agree with the examining division that claim 1 of the Main Request lacked clarity (see point 4.1 of the board's communication of 26 June 2020). The board considered, however, that claim 6 of the Main Request lacked clarity because the term "independent rate" was not clear (ibid. point 4.2). The same problem of lack of clarity was also present in those requests where the term "independent rate" of one display pipeline was defined without any reference to at least one other display pipeline, i. e. Auxiliary Requests 0a to 0c and 1a to 5a.

XXII. The appellant essentially argued that the skilled person would understand that "independent rate" meant a data rate that was independent from the system clock of the claimed network.

Regarding the admission of some of the Auxiliary Requests, the appellant's main argument was that it could not foresee that the board wound have had a different opinion from the examining division on the issue of clarity of claim 1 of the Main Request. Hence, in the beginning of the appeal it had removed from the claims the features objected by the division (in Auxiliary Requests 0a to 0c and 1a to 5a) and, when the board stated a different preliminary opinion, it reinstated those deleted features (in Auxiliary Requests 0a' to 0c' and 1 to 5).

As to the novelty of claim 1 of Auxiliary Request 0a', the appellant argued that D1 disclosed neither any display pipelines nor a flow control valve enabling independent rates in the sense of the invention.

Reasons for the Decision

1. The appeal is admissible.

2. The claimed invention

2.1 The claimed invention relates to a network environment in an A/V (audio/video) decoding device that processes one or more input data streams (the network is referred to also as "display engine" in the application).

2.2 The network comprises a series of nodes which can be modules that process video information (see for example paragraphs [0074] to [0076] and [0092] to [0094] of the application as published). A number (at least two) of nodes are connected (concatenated) together to form a display pipeline (a path for the data stream through the network). The network can form such display pipelines "on the fly" (in real time) according to network requirements. In this way, the network can accept new devices (input or output) that can be connected and integrated ad-hoc without any need for further adaptation (see also paragraph [0010]).

2.3 The claims refer to an embodiment of the network in which a flow control module is used in order to enable different display pipelines to have independent data rates (see paragraphs [0128] to [0130]).

3. Auxiliary Request 0a'

3.1 This request was filed with the appellant's letter of 1 October 2020, i. e. after the board had issued summons to oral proceedings. Exercising its discretion under Article 13 Rules of Procedure of the Boards of Appeal (RPBA 2020), the board admitted the request into procedure, mainly because claim 1 was essentially identical to claim 1 of the Main Request (see points IV and V above). Moreover, the amendments carried out in claim 6 overcame the lack of clarity objection the board had raised against the Main Request (see points IV and V above and point 4.2 of the board's communication of 26 June 2020).

Novelty (Article 54(1) EPC 1973)

3.2 Document D1 describes a system for real-time video processing that is modular and readily scalable (see title and abstract).

3.2.1 The video processing system (VPS) comprises several video processing modules (VPM), which in turn can comprise video processing daughterboards (VPD) (see Figure 1). The VPDs can perform a range of video processing functions such as video digitiser, image correlations, image warping, etc. (see page 5, lines 14 to 21). In the terminology of the present application, the VPS corresponds to the claimed network or display engine and the VPDs/VPMs to the nodes.

3.2.2 The VPS in D1 is modular and scalable in the sense that an input video stream can be routed to any number of the existing VPDs and VPMs according to the specific needs and circumstances (see for example page 4, lines 20 to page 5, line 13). This is achieved with the help of digital crosspoint switches. Such switches are provided in each VPM, as well as directly at the level of the VPS (secondary crosspoint switch) and actively route the video stream to specific VPMs and VPDs (see page 8, lines 11 to 38, as well as page 25, lines 18 to 32 and page 31, lines 10 to 17). In the board's view, this active routing to a selected number of VPMs and VPDs corresponds to the claimed definition of selecting and concatenating at least two nodes from a plurality of the nodes of the network.

3.2.3 The video streams are thus routed and processed through the VPS of D1 in a parallel and pipelined fashion (see for example first lines on page 8). D1 uses also the term "channels" instead of pipelines and describes that with the use of framing signals in the stream, each channel can be independent from the other channels and in particular can route independent video information with independent timings through VPS (see page 11, lines 6 to 15). The board regards this to correspond to the claimed definition of display pipelines, where one pipeline has a data rate independent from one other pipeline.

3.3 The appellant contested that D1 disclosed display pipelines in the sense of the application. The term "display pipeline" had a specific meaning in the relevant technical field and the skilled person would not consider the "channels" of D1 to be pipelines in the sense of the application.

3.3.1 Moreover, there was no flow control valve D1 that enabled the independent data rate of the pipeline (with respect to another pipeline). Although the term "flow control valve" was not used in claim 1 of Auxiliary Request 0a', the application used the terms "valve" and "module" interchangeably and claim 1 defined, thus, such a flow control valve (described also in paragraphs [0128] to [0130] of the published application). In D1 the video stream comprised timing signals framing the active video data by indicating areas of horizontal (HA) and vertical (VA) active data. These two framing signals, HA and VA, were used to control the data transfer (rate) in the channels (see page 10, lines 16 to 26) and achieve the independent data rates (see page 11, lines 6 to 16) and this was not the same as a flow control valve.

Claim 1 of Auxiliary Request 0a' was therefore new over D1.

3.4 The board does not find the appellant's arguments persuasive. There is no definition of a display pipeline in the application and the board concurs with the appellant that the term "pipeline" has a specific, established meaning in the art. D1 repeatedly mentions that the video streams are routed through the described video processing system in a parallel, pipelined fashion (see the the title or page 8, lines 1 and 2, for example). The board considers, thus, that the skilled person would readily understand that the described "video routing channels" in which the video streams (data) were routed in a pipelined fashion corresponds to the display pipelines of the claims.

3.4.1 Regarding the flow control module, the board agrees with the appellant that there is no flow control valve in D1. The claims, however, use the term "flow control module" leaving it open what this module might be. The flow control valve may be seen as such a module. As described in D1, the use of separate HA and VA framing signals, with the implicit corresponding controller, achieve, among others, the independent rates in the video routing channels (see page 10, line 16 to page 11, line 15). In the board's view, they can also be seen as a flow control module in the sense of the claims.

3.5 Summarising, D1 discloses all the features of claim 1 of Auxiliary Request 0a', the subject-matter of which, thus, is not new.

4. Main Request and Auxiliary Request 12.

4.1 As stated previously, the wording of claim 1 of the Main Request corresponds almost word for word to that of claim 1 of Auxiliary Request 0a' (see points IV and V above). The subject-matter of claim 1 of the Main Request is, therefore, not new for the same reasons as claim 1 of Auxiliary Request 0a'.

4.2 Claim 1 of Auxiliary Request 12 does not comprise the features related to the independent data rate of the display pipeline and the flow control module enabling such an independent data rate. It includes more details about the selection and concatenation of the nodes in order to form a display pipeline in that it specifies that it is done changeably and in real time with the use of a network module acting as a switch (see point VI above).

It is common grounds that D1 discloses the features relating to the real time selection and concatenation of the nodes of the network in order to form a changeable display pipeline with the use of a switch (see point 3.2.2 above).

The board concludes, thus, that the subject-matter of claim 1 of Auxiliary Request 12 is not new over D1, either.

4.3 The appellant did not present any additional arguments with respect to those requests.

5. Not admitted requests

The appeal was filed in February 2020, and hence the Rules of Procedure of the Boards of Appeal as in force from 1 January 2020 (RPBA 2020), and in particular Articles 12 and 13 RPBA 2020 apply (Article 25(1) RPBA 2020).

5.1 Auxiliary Requests 0a, 0b and 0c

5.1.1 These requests were filed with the statement of the grounds of appeal.

In its preliminary opinion, the board noted that these requests were not part of the proceedings before the examining division and considered them to be amendments to the appellant's case, which are to be admitted into the proceedings according to the board's discretion (Articles 12(2) and (4) RPBA 2020). The appellant did not contest this.

5.1.2 The appellant argued that the amendments carried out in these requests were in response to the objection for lack of clarity in the impugned decision (see point 3.1 of the reasons). In fact, with the amendments carried out the main objection of the examining division had been overcome, since the feature considered to be unclear had been deleted from the claims.

5.1.3 In its preliminary opinion, the board raised an objection for lack of clarity in relation to the feature "independent (data) rate" when there was only one display pipeline defined in the claim (see point 4.2 of the board's communication of 26 June 2020).

In more detail, the board raised the initial objection with respect to claim 6 of the Main request (which was then the highest ranking request), which defined that the claimed method comprised the feature that at least one display pipeline has an independent data rate enabled by a flow control module. According to the board, the term "independent data rate" was not clear because the claim did not explain or indicate from what or with respect to what the data rate was independent. The board noted also that this feature had been objected to already by the the examining division (see point 2.1 of the division's communication of 17 February 2017).

Claim 6 in each of the Auxiliary Requests 0a, 0b and 0c comprises the same feature. In addition, a corresponding feature is also included in claim 1 of all Auxiliary Requests 0a to 0c, which present, thus, the same lack of clarity problem (see point 6 of the board's communication of 26 June 2020).

5.1.4 The appellant argued that the claimed definition meant that the data rate in the display pipeline was independent from the system clock of the network (or display engine). As it was explained in the application (see for example Figure 2), the data processing in the display engine ran from a "fixed clock" (see element 214 in Figure 2). This meant that the system based the video and audio processing on multiples of a single clock (see original description page 13, lines 22 to 26, corresponding to paragraph [0059] of the published application). Hence, the data rate of a single display pipeline was defined by the system clock (see also original description page 13, lines 5 and 6, which correspond to the first lines of paragraph [0057] in the published application). The data rate of a single display pipeline was thus generally dependent on the clock of the processing device comprised in the network.

The use of the flow control module in the claimed system enabled the data rate to be independent from this fixed system clock, also in the case where there was a single display pipeline (see also original description, page 33, lines 3 to 10, corresponding to paragraph [0128] of the published application). The skilled person reading the claims, would therefore understand that the independent data rate of the claims referred to a data rate that was independent from the system clock of the display engine/network and the claims were clear (see also points 5 and 6 of appellant's letter of 1 October 2020).

5.1.5 The board does not find these arguments convincing.

At first, it is established case law that a claim has to be clear in itself in order to meet the requirement clarity as defined in Article 84 EPC 1973.

Secondly, the board notes that in those passages of the application which the appellant referred to there is mention that the data processing is controlled by the system clock. The rate of the display pipeline in the claims, however, refers to the data transfer rate and not to the data processing rate.

Moreover, there are several rates mentioned in the application besides the processing (fixed clock/system) rate, such as input data rate or the output data rate. There is mention of multiple output rates (see paragraphs [0053], [0058] and Figure 1 of the published application). There is mention that the data processing clock (i. e. the system clock) is not tied to the input data rate (paragraph [0060]). There is mention of adjusting the output rates (paragraph [0061] and rate managers (paragraph [0062]). In another part of the application there is mention of an output sample rate that may be different from an input sample rate (paragraph [0067]).

Summarising, the application mentions several different data rates used/present in the described network (or display engine). Hence, the board is of the opinion that the skilled person reading the claims, and seeking an explanation of which rate the term "independent data rate" refers to, would not necessarily reach the conclusion that the data rate in the claims is independent from the fixed (system) clock of the network. The term is, thus, unclear, contrary to the requirements of Article 84 EPC 1973.

5.1.6 Hence, although the amendments carried out in the Auxiliary Requests 0a, 0b and 0c may address the objections raised by the examining division in the decision under appeal, they introduce new issues that lead to new objections.

Therefore, the board, exercising its discretion under Articles 12(2) and (4) RPBA 2020, decides not to admit the Auxiliary Requests 0a, 0b and 0c into the procedure.

5.2 Auxiliary Requests 0b', 0b'-1 and 0c'

5.2.1 These requests were filed with appellant's letter of 1 October 2020, i. e. after the board had issued summons to oral proceedings. They were incontestably late filed and constituted an amendment to the appellant's case.

5.2.2 The appellant argued that these requests should exceptionally be admitted into proceedings because it could not predict that board would regard clear the feature that the examining division had considered not clear (see appellant's letter of 1 January 2020, point II.2).

The appellant stated that these requests (including Auxiliary Request 0a') were filed as a response to the board's preliminary opinion. The appellant explained that the requests 0a', 0b' and 0c' corresponded to requests 0a, 0b and 0c respectively, which were filed with the statement of the grounds of appeal. The amendments carried out with respect to those requests were simply the reinstatement of the features which were deleted as a response to the lack of clarity objection in the impugned decision. The Auxiliary Request 0b'-1 was filed only as a precaution in case the board considered the feature related to the use of the "pull mode" in claim 1 of Auxiliary Request 0b' to be unclear.

5.2.3 Arguing mainly for the admittance of Auxiliary Requests 0b' and 0b'-1, the appellant first pointed out that the additional features they comprised with respect to the requests underlying the impugned decision (relating to the "pull mode" used in the data transfer through the pipeline) were already included in Auxiliary Request 0b, i. e. they were filed in the beginning of the appeal. These features were added as a response to an objection for lack of novelty by the division, so it was a legitimate reaction of the appellant and they should, thus be admitted in the procedure.

5.2.4 The board notes that the features related to the "pull mode" have never been included in any of the claims filed and discussed during the examination procedure. It is even questionable whether these features had been taken into consideration when the prior art search was carried out. The last objection for lack of novelty by the examining division was raised in its communication annexed to the summons to the oral proceedings (letter of 14 February 2019). The appellant (then applicant) filed twelve auxiliary requests as a response to that communication and in none of them were any features relating to the "pull mode" included.

Hence, the board considers that the appellant could and should have filed these requests during the first instance proceedings. Moreover, the board regards that it could not deal with requests comprising such features without undue burden, since it was not even certain that appropriate prior art was readily available in the file.

5.2.5 Regarding Auxiliary Request 0c', the appellant did not provide any additional arguments.

5.2.6 Summarizing, the board considers that Auxiliary Requests 0b', 0b'-1 and 0c' were filed late, constituted an amendment of the appellant's case and could not be dealt with without undue burden.

Exercising its discretion under Article 13 RPBA 2020, the board decides not to admit these requests into the proceedings.

5.3 Auxiliary Requests 1a to 5a

5.3.1 These requests were introduced and commented upon in the statement of the grounds of appeal but no claims were filed at that stage. The claims of these requests were filed with the appellant's letter of 1 October 2020.

5.3.2 Since no claims were filed for these requests with the statement of the grounds of appeal, they did not fulfil the requirements of Article 12(3) RPBA 2020. The board has the discretion not to admit them into the proceedings for this reason only (Article 12(5) RPBA 2020).

Moreover, since these requests were not part of the decision under appeal, they are to be considered as amendments, which are to be considered at the board's discretion (Articles 12(2) and (4) RPBA).

5.3.3 The board notes that in claims 1 and 6 of each of the Auxiliary Requests 1a to 5a, the feature related to "an independent data rate", which has been found to be unclear (see points 5.1.3 to 5.1.5 above), is included.

Hence, none of these Auxiliary Requests meets the requirement of clarity in the sense of Article 84 EPC 1973.

5.3.4 The board, therefore, exercising its discretion under Article 12 RPBA 2020 decides not to admit the Auxiliary Requests 1a to 5a into the proceedings for the same reasons as for Auxiliary Requests 0a to 0c.

5.4 Auxiliary Requests 1 to 5

5.4.1 These requests are part of the requests underlying the impugned decision. The examining division was of the opinion that they lacked clarity (see point 3.2 of the reasons). Entering the appeal, the appellant replaced these requests with Auxiliary Requests 1a to 5a (see page 1, section "I. Requests", point 2 of the statement of the grounds of appeal). In its letter of 1 October 2020 the appellant referred to those requests anew, considering them to be still among the pending requests (see point "I. 1 Requests" on the first page). No arguments were put forward regarding those requests at all, neither with regards to their admittance nor with regards to how they might overcome the outstanding objections.

5.4.2 During the oral proceedings, the appellant argued mainly about the admittance of Auxiliary Request 5. It argued that it was based on Auxiliary Request 5a, with the addition of the feature that was objected to by the examining division for lack of clarity but the board had considered to be clear. The appellant pointed out that Auxiliary Request 5 was underlying the impugned decision and, thus, was not a new request (or an amendment of the appeal case). It pointed out that if the board would not admit it into the proceedings, it would be a result of inconsistent exercise of discretion since the board had admitted Auxiliary Request 0a', which was a late filed, new request, but not Auxiliary Request 5, which was underlying the impugned decision. The appellant considered such an exercise of discretion to be unfair and to restrict its right to be heard. The appellant also argued that the crucial feature of the handshaking protocol was part of the appeal given that it was present in the auxiliary request 5a, and therefore the Board not only had the possibility to examine it in good time, but indeed had an obligation to examine it.

5.4.3 Although it is true that Auxiliary Requests 1 to 5 were underlying the decision under appeal, it is also true that they were replaced (i. e. withdrawn) in the beginning of the appeal and were, thus, not part of the appellant's case. The board regards, thus, their reintroduction with the appellant's letter of 1 October 2020 as an amendment to the appellant's case, which is to be admitted into the procedure under Article 13 RPBA 2020.

The board notes further, that the examining division had rejected these requests for lack of clarity and no other opinion on them was given in the decision under appeal with respect to the other patentability requirements. Since the board did not agree with the lack of clarity objections of the examining division, these requests had to be assessed with respect to the other patentability requirements according to the EPC. Moreover, by replacing them in the beginning of the appeal, the appellant did not give the board the chance to examine them and form at least a preliminary opinion on them.

The board also cannot accept the argument that it had to be prepared for the examination of a claim including the handshake protocol because this feature was found in a claim filed in the appeal. Such an expectation on the part of the appellant is wholly unrealistic, as it would effectively oblige the board to be prepared for claims potentially containing all technically possible combination of features figuring in the different requests which were filed with the grounds of appeal. The board had no obligation either to examine novelty and/or inventive step of auxiliary requests 5a, once the board was convinced that the request was not clear.

5.4.4 Summarising, the board considers the reintroduction of Auxiliary Requests 1 to 5 to be an amendment to the appellant's case, which the board cannot deal with without undue burden. Exercising its discretion under Article 13 RPBA 2020, the board decides not to admit Auxiliary Requests 1 to 5 into the procedure.

5.5 Auxiliary Requests 6 to 12

5.5.1 Auxiliary Requests 6 to 11 were filed in preparation to the oral proceedings before the examining division. During the oral proceedings, the examining division regarded these requests as late filed and prima facie unclear and, exercising its discretion under Rule 137(3) EPC, decides not to admit them into the proceedings (see point 3.3. of the decision under appeal).

According to Article 12(6) RPBA 2020 the Board shall not admit requests wich were not admitted in the proceedings leading to the decision under appeal, unless the decision not admit them suffered from an error in the use of discretion or unless the circumstances of the appeal justify their admittance.

5.5.2 The appellant did not provide any arguments with respect to these requests in appeal. In particular, the appellant did not provide any arguments as to why the examining division might have erred in the exercise of its discretion in deciding not to admit them or why the circumstances might justify their admittance in appeal.

5.5.3 In the absence of any arguments from the appellant, the board does not see any reason to put the decision of the examining division into question. No particular circumstances are apparent to the board that would justify the admittance of these requests in appeal, either.

The board decides, thus, not admit Auxiliary Requests 6 to 11 in the proceedings (Article 12(6) RPBA 2020).

6. Since the requests on file (Auxiliary Request 0a', Main Request and Auxiliary Request 12) are not allowable and the remaining auxiliary requests are not admitted, the appeal must fail.

Order

For these reasons it is decided that:

The appeal is dismissed.

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