T 0704/05 (Developer/SHARP) 31-07-2007

1. The appeal is admissible.

2. Sufficiency (Article 83 EPC)

Figure 1B, an enlarged cross-section of the contact between the developing roller 16 and the toner control member 26 of Figure 1A, shows L1 as a length that is measured between the leading edge of a hole 32 just coming into contact with the underside of the toner control member 32 and the point at which the roller ceases to contact that underside. Therefore, as submitted by the appellant, there can be no doubt that L1, defined in claim 1 as being the nip width, is measured azimuthally along the circumference of the developer roller 16. Although it is logically possible for alpha to be measured along a different direction, eg axially, to that along which L1 is measured such an interpretation would not be the natural interpretation.

3. In the judgement of the board the application complies with Article 83 EPC in respect of the definition of the parameter alpha.

4. Since the examination of the application in respect of the remaining requirements of the EPC has not been started it is appropriate to remit the case pursuant to Article 111(1) EPC.

5. Procedural issues

5.1 In the statement of grounds of appeal, foot of page 3, the appellant applicant appears to suggest that the examining division introduced the pivotal reason for refusal (point III above and point 1.3, second sentence of the decision under appeal) for the first time in the decision itself. Although this important fact was not mentioned in the recital of facts and submissions in the decision under appeal, the board notes that this reason was indeed communicated to the applicant at the oral proceedings held before the examining division (minutes, second sentence), thus giving the applicant an opportunity to comment in compliance with Article 113(1) EPC.

5.2 It also appears from these minutes that the applicant did not contest this reasoning of the examining division at the oral proceedings. On appeal however a refutation was made which the board finds convincing. It follows that the board believes that the examining division could have set its decision aside by way of interlocutory decision pursuant to Article 109(1) EPC on sight of this refutation, as expressly requested by the appellant applicant.

5.3 Given that the examining division is expressly precluded from giving its reasons for not granting interlocutory revision it is not open to the board to criticise this omission. The mandatory but necessarily silent judgement made pursuant to Article 109(1) EPC as to whether an appeal refutes the reasons for a refusal is not an exercise of discretion and ipso facto leaves no room for an inquiry as to whether discretion was properly exercised. The board is aware that a number of decisions of the boards of appeal have taken a different view on this point - to the extent of sometimes castigating such omission as a substantial procedural violation - but respectfully suggests that these decisions have not given sufficient weight to the implications of the silence imposed on the examining division by Article 109(2) EPC.