T 1777/20 (Composite display device/UNI SAARLAND) 13-01-2023
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METHOD AND SYSTEM FOR DISPLAYING PIXELS ON DISPLAY DEVICES
Reimbursement of appeal fee - (no)
Reimbursement of appeal fee - substantial procedural violation (no)
Late-filed request - circumstances of appeal case justify admittance (yes)
I. This appeal is against the examining division's decision posted on 17 March 2020 refusing
European patent application No. 13741682.2. The application was refused for lack of clarity
(Article 84 EPC) and lack of inventive step
(Article 56 EPC) of the main request in view of the disclosure of:
D8: US 2010/164970
and the common general knowledge of the Windows operating system environment.
An auxiliary request filed during the oral proceedings was not admitted into the proceedings under Rule 137(3) EPC.
II. Notice of appeal was received on 27 May 2020, and the appeal fee was paid on the same date. The statement setting out the grounds of appeal was received on
27 July 2020. The appellant requested that the decision be set aside and that a patent be granted on the basis of a main request filed with the statement setting out the grounds of appeal or auxiliary requests I or II corresponding to the main request and the auxiliary request, respectively, on which the decision was based. Furthermore, the appellant objected that its right to be heard had not been respected. Oral proceedings were requested as an auxiliary measure.
III. A summons to oral proceedings was issued on
9 May 2022. In a communication pursuant to Article 15(1) RPBA, sent on 6 December 2022, the board gave its preliminary opinion that the main request and auxiliary request II should not be admitted into the appeal proceedings under Article 12(6) RPBA and that auxiliary request I did not appear to meet the requirements of Article 84 EPC and Article 56 EPC having regard to D8 and the common general knowledge. Furthermore, the board expressed the opinion that, contrary to the appellant's assertion, the right to be heard under Article 113(1) EPC had not been infringed.
IV. By letter dated 5 January 2023, the appellant provided further arguments for the main request and auxiliary request I, withdrew auxiliary request II, and filed a new auxiliary request II.
V. Oral proceedings were held on 13 January 2023. The appellant requested that the decision under appeal be set aside and that a patent be granted based on the main request submitted with the statement of grounds of appeal, auxiliary request I corresponding to the main request filed during the oral proceedings before the examining division on which the decision under appeal was based or auxiliary request II submitted with the letter of 5 January 2023. The appellant further requested that the appeal fee be reimbursed. The board's decision was announced at the end of the oral proceedings.
VI. Claim 1 of the main request reads as follows:
" A method for displaying pixels on physical display devices (2 ) in a network (7 ), characterized by the steps of
b) Generating, on a pixel receiving side, by a virtual display service implemented on a computer, a composite virtual display (1 ) with display parameters representing one or more physical display devices (2 ), the composite virtual display comprising one or more transport pipelines for receiving pixel data generated by one or more pixel sources (5 ) and one or more back-end components for drawing the pixels of the received pixel data onto a screen of the physical display devices (2 ),
c1) Requesting, by the one or more pixel sources (5 ), more than one virtual framebuffer (6) from a display manager (M), the display manager being a separate software component running on a host reachable through the network (7 ),
c2) Providing, on a pixel serving side, by a virtual framebuffer service implemented on a computer, the requested one or more virtual framebuffers (6) to the requesting pixel sources (5 ), each virtual framebuffer having a resolution requested by a pixel source (5 ), wherein the requested resolution is independent of the resolution of the physical display devices (2 ), and providing a memory region for temporarily storing the pixel data,
d) Writing pixel data into the virtual framebuffers (6) by the one or more pixel sources (5 ), using an application view part of an application programming interface (API) of the virtual framebuffer (6),
e1) Mapping the pixel data, according to the display parameters, from the one or more virtual framebuffers (6) to the composite virtual display (1 ),
e2) Setting up, by the display manager (M), an end-to-end data flow between a pixel source (5 ) represented by the virtual framebuffer it is writing to and the physical display devices, according to the mapping, using a management view part of the application programming interface (API) of the virtual framebuffer (6),
f) Transmitting, according to the end-to-end data flow set up by the display manager, the mapped pixel data stored in the virtual framebuffers (6) to the one or more physical display devices of the composite virtual display via the network (7 ) based on a network transmission protocol,
g) Displaying the pixels of the transmitted pixel data on the physical display devices (2 ),
characterized in that the virtual frame buffers (6a, 6b) are hosted on more than one server and pixel data stored in more than one of the virtual frame buffers (6a, 6b) is transmitted to the same physical display device."
Claim 1 of auxiliary request I reads as follows:
"A method for displaying pixels on physical display devices, characterized by the steps of
b) Generating, on a pixel receiving side, by a virtual display service implemented on a computer, one or more virtual displays providing an interface to communicate with a physical display and comprising a back-end for drawing pixels on the physical display, with display parameters representing one or more display devices (2),
c) Providing, on a pixel sending side, by a virtual framebuffer service implemented on a computer, one or more virtual framebuffers(6), for temporarily storing pixel data generated by one or more pixel sources (S),
d) Writing pixel data into the virtual framebuffers (6) by the one or more pixel sources (5),
e) Linking the one or more virtual displays with the one or more framebuffers, so that pixels written into a number of virtual framebuffers are destined to be transmitted to the linked virtual displays and therefore be displayed by one or more physical display devices linked with corresponding virtual displays,
f) Transmitting the pixel data stored in more than one virtual frame buffer (6) to the same linked virtual display devices via a network (7) based on a network transmission protocol,
g) Displaying the pixels of the pixel data on the physical display devices (2) linked with the corresponding virtual displays."
Claim 1 of auxiliary request II reads as follows:
"A method for displaying pixels on physical display devices, characterized by the steps of
b) Generating, on a pixel receiving side, by a virtual display service implemented on a computer, one or more virtual displays with display parameters representing one or more physical display devices (2), the one or more virtual displays providing an interface to communicate with a physical display device,
c) Providing, on a pixel serving side, by a virtual framebuffer service implemented on a computer, one or more virtual framebuffers (6), for temporarily storing pixel data for pixels to be displayed, generated by one or more pixel sources (S),
d) Writing pixel data into the virtual framebuffers (6) by the one or more pixel sources (5),
e) Linking the one or more virtual displays with the one or more framebuffers, so that pixel data written into a number of virtual framebuffers are destined to be transmitted to the linked virtual display devices and therefore be displayed by one or more physical display devices represented by the virtual displays,
f) Transmitting the mapped pixel data stored in the more than one virtual frame buffers (6) to the same linked virtual display via a network (7) based on a network transmission protocol,
g) Displaying the pixels of the transmitted pixel data on the physical display devices (2) represented by the virtual displays."
1. Right to be heard - Article 113(1) EPC
The appellant argued that its right to be heard had not been respected during the examination proceedings.
According to the appellant, the reasoning under point 3 of the decision, namely an inventive-step objection based on D8 and the common general knowledge of the Windows operating system environment at the basis of the decision, was not part of any communication previous to the oral proceedings and was not sufficiently discussed during the oral proceedings before the examining division. First, the appellant argued that the only communication citing D8 was filed only a few days before the oral proceedings and did not contain a substantiated line of argument why this document was relevant. Second, the appellant argued that although the content of D8 had been discussed at length during the oral proceedings, the division relied on the combination of D8 with the common general knowledge of the Windows environment only at the end of the oral proceedings, this not giving the appellant enough time to react. It further argued that its request to continue the proceedings in writing had been refused.
However, the board notes that D8 has been cited in a
communication sent one week before the oral
proceedings in response to new auxiliary requests
filed after the summons had been sent. In this communication, the examining division stated that D8 disclosed the use of virtual frame buffers in a server for generating composite displays. In oral proceedings, a novelty objection based on D8 against the then main request was discussed (see points 4 and 5 of the minutes of the oral proceedings). In response to the findings of the examining division that the then main request was not new, the appellant filed a new main request and a new auxiliary request replacing all previous requests (see point 7 of the minutes). Again, a novelty objection based on D8 was discussed (see point 8 of the minutes), and in response the appellant filed a new main request and a new auxiliary request, replacing the previous requests (see point 9 of the minutes), these new requests being the subject of the impugned decision. In the oral proceedings, the examining division raised an inventive-step objection against the main request based on D8 and the common general knowledge (see point 12 of the minutes), where the common general knowledge was clearly identified as the GUI of Microsoft Windows (see point 14 of the minutes). Points 16 and 17 of the minutes show that the appellant had the opportunity to counter-argue before the discussions on the main request were closed.
In conclusion, the board holds that the appellant became aware during the oral proceedings of the inventive-step objection in point 3 of the decision and had an opportunity to present comments. Therefore, the requirements of Article 113(1) EPC are fulfilled.
Since no substantial procedural violation of the appellant's right to be heard occurred, the request for reimbursement of the appeal fee under
Rule 103(1)(a) EPC, submitted by the appellant during the oral proceedings before the board, cannot be allowed.
2. Admission of the main request filed with the statement setting out the grounds of appeal
The main request was filed for the first time with the statement setting out the grounds of appeal. The appellant's appeal case is thus not directed to the requests on which the decision under appeal was based, contrary to the requirements of Article 12(2) RPBA.
Since the main request was not admissibly raised and maintained in the examination proceedings, it has to be regarded as an amendment within the meaning of Article 12(4) RPBA and may be admitted only at the discretion of the board. The board may admit such a request when the circumstances of the appeal case justify it (Article 12(6) RPBA).
As to these circumstances, the appellant argued, inter alia, that the new characterising feature of claim 1 was added to overcome the inventive-step objection based on D8 and the common general knowledge of the Windows operating system environment. This objection was raised by the examining division only at a later stage of the oral proceedings and was not sufficiently discussed in the oral proceedings. Moreover, the document D8 was introduced only a few days before the oral proceedings for its disclosure of virtual frame buffers, whereas all the prior-art documents on file did not rely on virtual frame buffers. Furthermore, although D8 was discussed at the beginning of the oral proceedings, the examining division additionally relied on the common general knowledge of the Windows operating system at a very late stage of the oral proceedings and rejected the appellant's request to continue the procedure in writing.
The board considers these circumstances to justify the admission of the main request into the appeal proceedings under Article 12(6) RPBA.
However, since the main request adds new features not discussed in the first-instance proceedings, the board considers it appropriate to remit the case under Article 11 RPBA for assessment of compliance of the main request with the requirements of the EPC.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The case is remitted to the examining division for further prosecution.
3. The request for reimbursement of the appeal fee is rejected.