|European Case Law Identifier:||ECLI:EP:BA:1982:T003281.19820305|
|Date of decision:||05 March 1982|
|Case number:||T 0032/81|
|Language of proceedings:||FR|
|Download and more information:||
|Title of application:||-|
|Applicant name:||Fives-Cail Babcock|
|Headnote:||If the problem prompts the person skilled in the art to seek its solution in another technical field, the specialist in that field is the person qualified to solve the problem. The assessment of whether the solution involves an inven- tive step must therefore be based on that specialist's knowledge and ability.|
|Relevant legal provisions:||
|Keywords:||Inventive step - technical field
Specialist's knowledge and ability
Person skilled in the art
Summary of Facts and Submissions
I. European patent application No. 79 400 197.4, filed on 28. March 1979, published under publication No. 0 004 809 and claiming priority from an earlier application of 7 April 1978, was refused by decision of the Examining Division dated 23 July 1981. That decision was based on Claim 1 in the wording agreed to by the applicant in his submission of 4 March 1981, original Claims 2-4, 6-8 and 13, and two texts proposed by the applicant as alternatives for Claim 1.
II. By reference to the general knowledge of any technically-skilled person and to patent specifications DT 58 900 and US 3 504 786, the Examining Division asserted in its decision that the subject-matter of each of Claims 1 was certainly new but did not involve an inventive step. The same was true for the subject-matter of the dependent claims.
III. On 14 September 1981 the applicant lodged an appeal against that decision. At the same time, he paid the appeal fee and filed a Statement of Grounds. He also submitted seven claims and stated that the was prepared, if need be, both to combine Claims 1 and 2 and to include in such a claim a reference to the means for adjusting the height of the socket.
Claims 1 and 2 are worded as follows:
"1. Cleaning apparatus for endless conveyor belt, comprising a set of independent scrapers connected to a support by means of elastic elements, characterised in that each elastic element is composed of a glass-fibre-reinforced plastics rod (7. 8).
2. Apparatus according to Claim 1, characterised in that each end of the rod (7, 8) is glued into a socket, one of said sockets (9, 10) being integral with the scrapers (4,5) and the other (11, 12, 13) being integral with the support (6)." The applicant submits that the apparatus according to Claim 1 is not only new but also involves an inventive step, and that the use of glass fibre does not form part of the general knowledge of a conveying equipment specialist.
IV.The applicant was informed, by a communication of 11 December 1981, that the assessment of inventive step could not be based on the knowledge of a conveying equipment specialist but on that of a materials specialist.
V. In his submission received on 30 December 1981, the applicant contests the view that a materials specialist should be taken as the person skilled in the art.
VI. For the original Claim 1, reference should be made to publication No. 0 004 809.
Reasons for the Decision
1. The appeal complies with Articles 106 to 108 EPC. The applicant has not expressly submitted a statement identifying the extent to which cancellation of the decision impugned is requested; nevertheless, he has submitted Claims 1 to 7 and proposed two additional texts for Claim 1. It can thus be inferred that he is asking for the decision to be set aside to the extent that it affects one of those texts. Consequently, the appeal also complies with Rule 64 of the Implementing Regulations and is therefore admissible.
2. The content of the present Claim 1 accords with that of the Claim 1 on which the decision under appeal is based.
3. After examining the prior publications cited in the search report, the Board agrees with the Examining Division that the apparatus described in Claim 1 is new in relation to those publications.
4. Therefore, the question to the considered is whether this apparatus involves an inventive step. The following points emerge:
4.1 According to what the applicant says in his submission received on 30 December 1981, there disadvantages in using elastic elements made of metal as a means of supporting the scrapers, because such metal components often break. Considering that the rod-shaped design of elastic elements in an apparatus possessing the features indicated in the first part of Claim 1 was already known (see the drawing in patent specification DT 58900, particularly reference symbol 5), the problem to be solved in connection with the apparatus according to Claim 1 consists in discovering a rod-shaped elastic element which is less prone to breakage.
4.2 This problem undeniably confronts the conveying equipment specialist; however, it prompts him at the same time to seek its solution in the field of material science. Consequently, the skilled person qualified to solve the problem cannot be a conveying equipment specialist, but has to be a materials specialist alone. Therefore, the assessment of whether the problem's solution (which, according to Claim 1 consists in replacing metal by a synthetic resin reinforced with glass fibres) involves an inventive step must be made by reference to the knowledge and ability of a materials specialist, not a conveying equipment specialist.
4.3 A materials specialist customarily uses plastics in place of traditional materials, particularly in cases where traditional materials would not function satisfactorily. In the present case, the skilled person knows that the only suitable possibility is a synthetic material of sufficient elasticity and fatigue strength. He also knows that synthetic resins reinforced with glass fibres meet those requirements. It thus immediately occurs to him to suggest using a synthetic resin reinforced with glass fibres as the material for rod-shaped elastic elements. If the skilled person is unsure whether glass fibre rods break less easily than the known springy strips or rods, he can simply conduct an experiment.
4.4 For the foregoing reasons, the Board cannot agree with the applicant that the skilled person relevant in the assessment whether the invention involves an inventive step is the specialist in the technical field indicated in the preamble of the claim.
4.5 Thus, the subject-matter of Claim 1 does not involve an inventive step (Article 56 EPC). claim 1 is therefore not allowable under Article 52(1) EPC.
4.6 Consequently, the question of whether or not the reference in the original Claim 1 to the means of adjusting the position of the sockets carrying the rods should be deleted in the present Claim 1 does not need to be considered.
5. It is also necessary to examine whether a Claim 1 combining the features of the present Claims 1 and 2 is allowable.
5.1 The subject-matter of such a claim is also new, for reasons which do not need to be explained in further detail.
5.2 The question of whether this subject-matter invovles an inventive step is covered by the considerations set out in paragraphs 4.1 to 4.3, with the addition of the following further points: The applicant does not contest the fact that the arrangement whereby both ends of a rod are fixed into collars was comprised in the state of the art pertaining to conveying equipment (see patent specification US-3 504 786, Figures 14 and 15 in the drawings; column 5, lines 30 to 35 of the description). It is readily apparent to the skilled person that the can also use this method of attachment by collars (sockets) to fix the ends of the glass fibre rods of the cleaning apparatus to the scrapers and the support. The use of glue as a means of attaching components to each other is common practice in all technical fields and an obvious step in the present case.
5.3 Consequently, the subject-matter of a Claim 1 combining the present Claims 1 and 2 does not involve an inventive step either. That claim is therefore not allowable.
6. Finally, it is necessary to examine whether the Claim 1 discussed above is allowable with the incorporation in the apparatus, as a characterising feature, of means for adjusting the height of the socket.
6.1 The applicant admits that means for adjusting height are already known, at least generically, and that their presence is a normal practical necessity. It is immediately clear to the skilled person that such means have to be placed between at least one of the two sockets and the glass fibre rod if the height of each scraper is to be individually adjustable.
6.2 For this reason, a Claim 1 incorporating the above characterising feature is not allowable either.
7. The other claims are all dependent on one or other of the Claims 1 discussed. Since none of these Claims 1 is allowable, the dependent claims are not allowable either.
ORDER For these reasons, it is decided that:
The appeal against the decision of the Examining Division dated 23 July 1981 is dismissed.