T 1250/06 16-10-2007

1. The appeals are admissible.

2. Main request

Considering that the arguments submitted by appellant I in support of the allowability of the feature of claim 1 that the plies are joined at the opposite edges to the free edges are the same that were submitted before the Opposition Division (page 5 of the decision under appeal, paragraph beginning with: "The patentee argued..."), that the Board agrees with the reasoning of the Opposition Division for finding that there is no basis in the application as filed for this feature (page 5 of the decision under appeal, paragraph beginning with "The opposition division cannot follow this view..."), and that this reasoning is complete and convincing, the appellant I's main request is refused because the amendments made violate Article 123(2) EPC for the same reasons given by the Opposition Division under point 2.1 of the decision under appeal.

3. First auxiliary request

3.1 Amendments

3.1.1 Claim 1 consists of the combination of granted claims 1 and 2, with the feature "the plies being joined at opposite edges to the free edges" being omitted and the feature "folding the fabric about a longitudinal fold line" being inserted. This amendment has the effect of removing the cause of non-compliance with Article 123(2) EPC, thus bringing claim 1 in line with the disclosure of the application as filed (see e.g. original claim 1).

Independent claim 13 is similarly amended by combining granted claims 17 and 18, deleting the feature "the plies being joined at the opposite edges to the free edges" and inserting the feature that the "parallel fabric plies are provided as a fabric folded about a longitudinal fold line".

Dependent claims 2 to 12 and 14 to 20 correspond to granted claims 5 to 14, 16, 21 to 27, which are undisputedly supported by the disclosure of the application as filed.

The description is amended to bring it into conformity with the amended claims and to acknowledge document D1.

Therefore, the amendments made do not give rise to objections under Article 123(2) EPC. This in fact, was not disputed.

3.1.2 The amendments are also not objectionable under Article 123(3) EPC.

Granted claim 1 recites "the plies being joined at the opposite edges to the free edges". Granted claim 15, which is dependent on claim 1, defines that "the step of feeding the fabric comprises folding the fabric about a longitudinal fold line into the first and second plies such that the opposite edges are joined by the fold line" and therefore makes clear that granted claim 1 includes the possibility that the plies are joined at the opposite edges to the free edges by means of the fold line and not necessarily by a join provided by means of a joining process such as welding, glueing, seaming, etc. Accordingly, the amendment to claim 1 consisting of omitting the feature "the plies being joined at opposite edges to the free edges" and introducing the feature "folding the fabric about a longitudinal fold line" limits the scope of protection to the above-mentioned possibility. The analogous amendments made to claim 13 likewise do not extend the protection conferred.

Appellant II submitted that granted claim 15 should be read to require that the first and second plies were joined at the opposite edge by the fold line in addition to these being joined by a join (provided by means of a joining process) as required by claim 1. In the Board's view this interpretation of claim 1 is artificial: it does not correspond to the literal wording of granted claims 1 and 15 and refers to a possibility which, technically, does not make sense. Granted claim 1 does not specify a step of making a join but refers to a configuration of the plies, namely the configuration in which they are joined ("the plies being joined") at the opposite edges. Also granted claim 15 refers to this configuration of the plies and specifies that the opposite edges are joined by the fold line. It is therefore clear that claim 15 refers to the particular case encompassed by the generic wording of claim 1 in which the plies are joined by the fold line and by no other means. Furthermore, in the absence of any indication in the patent in suit in this respect, the skilled reader would exclude the possibility mentioned by the appellant II, as he would regard the provision of a further join in addition to the fold line devoid of any practical purpose.

3.2 Prior art - Novelty

3.2.1 Using the wording of claim 1 of the patent in suit, D1 undisputedly discloses (see Figs. 1, 5) a method of forming a string of pocketed coil springs comprising feeding a supply of fabric (14), providing first and second generally parallel fabric plies (see Fig. 1), inserting a series of axially compressed springs (12, see Figs. 3A-3C and col. 9, lines 26 to 32) between the first an second plies, joining the first and second plies together by forming a longitudinal seam proximate free edges of the first and second plies (see col. 15, lines 19 to 37 and Fig. 6), allowing the springs to partially axially expand (see col. 14, lines 40 to 46) within the fabric in the same orientation as they are inserted between the plies so that the longitudinal axis of each of the springs is generally perpendicular to the longitudinal seam, forming a transverse seam (see Fig. 5) in the fabric between adjacent springs to thereby enclose each of the springs within a fabric pocket, the transverse seams being formed generally parallel to the longitudinal axes of the springs.

According to D1, see Fig. 1, the fabric is folded about two lines into a U-shape before inserting the springs. By reciting "folding the fabric about a longitudinal fold line into first and second generally parallel fabric plies" claim 1 of the patent in suit makes clear that the two plies between which the springs are inserted are separated by the fold line. This is not the case in D1 (see Fig. 1), where the two parallel plies between which the springs are inserted, are separated by a portion of fabric. Therefore, D1 does not disclose the feature of claim 1 according to which the fabric is folded about a longitudinal fold line into first and second generally parallel fabric plies.

Further according to the teaching of D1, the springs are allowed to partially expand within the fabric after joining the first and second plies by forming the longitudinal seam. This partial expansion (see Fig. 5) occurs when the springs exit the mandrel 56 (see col. 15, lines 7 to 13; note that a final (full) expansion occurs when the springs exit members 120, at which time they are retained only by the fabric pockets, see col. 14, lines 43 to 46). Appellant II contended that this partial expansion occurred prior to forming the transverse seams. This cannot be accepted. In the method of D1, as explained on col. 14, lines 3 to 27 with reference to Figs. 4 and 5, a spring to be enclosed within a fabric pocket is urged by head 58 against a first seam 103 which has just been previously provided (see Fig. 5); it is then displaced by head 58 downstream until the spring passes beyond the welding heads 100. Only at this moment (see Fig. 6), after the spring has left the mandrel 56 and thus has partially expanded, is the second seam 103 for enclosing the spring formed. This second seam, however, also serves as the first seam for enclosing the next spring, which is then forwarded in a compressed state by head 58 through the mandrel. Accordingly, only one of the transverse seams enclosing a spring (namely, for a given spring, the rear transverse seam) is formed after the spring has partially expanded. It is noted that claim 1 recites that the springs are allowed to at least partially expand prior to forming the transverse seams (note: plural form) and therefore requires that both seams enclosing a spring are formed when the spring is at least partially expanded. This reading of claim 1 is fully consistent with the description, which discloses (see Fig. 2) that the front and rear transverse seams enclosing a spring are made after the spring has been allowed to expand. Therefore, D1 also does not disclose the feature of claim 1 according to which the springs are allowed to partially expand prior to forming the transverse seams.

This conclusion remains unchanged even if D1 is read in accordance with appellant II's view as disclosing the forming of a transverse seam when a spring is within and close to the exit of the mandrel 56, i.e. in the position shown in Fig. 5. Since D1 is silent about the distance between the welding heads 100U and 100L, it cannot be inferred from the disclosure of Fig. 5 whether the spring is sufficiently outside the mandrel (i.e. by at least half of its width as acknowledged by appellant II itself) such that it has partially expanded before the seam 103 is formed.

3.2.2 Analogously, D1 does not disclose at least the following features of claim 13 of the patent in suit:

a fabric supply station for providing first and second generally parallel fabric plies as a fabric folded about a longitudinal fold line,

the transverse seam forming station is downstream of the spring expansion station.

In fact, in the assumption that there is in D1 a spring expansion station which corresponds to the portion of the apparatus of D1 next to the mandrel 56 in which the expansion occurs, the spring expansion station has a width which is equal to or greater than the width of a spring (i.e. about the height of the mandrel's exit opening). In such case, the transverse seam forming station is located within the spring expansion station rather than downstream thereof.

3.2.3 D2 is cited in the description of the patent in suit (see par. [0004] to [0006]). D2 discloses a method and an apparatus according to the preamble of claims 1 and 13, respectively.

Using the wording of claim 1, D2 discloses a method of forming a string of pocketed coil springs comprising feeding a supply of fabric (25), folding the fabric about a longitudinal fold line into first and second generally parallel fabric plies (see col. 3, lines 24 to 29), inserting a series of axially compressed springs (36) between the first and second plies (see col. 3, lines 59 to 62), joining the first and second plies together by forming a longitudinal seam (46) proximate free edges of the first and second plies (see col. 3, line 65 to col. 4, line 2), allowing the springs to at least partially axially expand within the fabric in the same orientation as they are inserted between the plies so that the longitudinal axis of each of the springs is generally perpendicular to the longitudinal seam (as explained by the Opposition Division in the decision under appeal, see page 16, this expansion takes place after leaving the indexing rolls 296, 298, see col. 10, lines 55 to 58, Figs. 1 and 13), and forming a transverse seam (52a-c) in the fabric between adjacent springs to thereby enclose each of the springs within a fabric pocket (see col. 4, lines 7 to 13; see Fig. 3).

D2 undisputedly does not disclose the features of the characterizing portions of claims 1 and 13. In fact, according to the teaching of D2, the springs are maintained compressed prior to formation of both the longitudinal and the transverse seam (see Fig. 4; see col. 3, line 62 to col. 4, line 2; note that the springs are turned from the position of Fig. 4 so that they come in the position of Fig. 3).

3.2.4 Therefore, the subject-matter of independent claims 1 and 13 is novel over the cited prior art.

3.3 Inventive step

3.3.1 The starting point of the invention according to the patent in suit (see par. [0004] to [0007]) is document D2. The problem underlying the patent in suit (see par. [0007]) is to provide a method and a system which does not require the turning of the springs within the pockets for alignment of the spring axes in a generally parallel and ordered arrangement nor operator intervention to unhook or disentangle the springs nor repair the damaged fabric surrounding the springs. This problem is effectively solved by a method and system according to claims 1 and 13, respectively.

3.3.2 The Board agrees with the Opposition Division's view that D2 represents the closest prior art (see page 15, last paragraph, of the decision under appeal) because it has more structural similarity with the invention of the patent in suit due to the fact that the springs are inserted between two generally parallel plies of a fabric folded about a longitudinal fold line.

3.3.3 Starting from D2, there is no indication in the prior art to solve the above mentioned problem in the manner indicated by claims 1 and 13 of the patent in suit. Indeed, the partial expansion of the springs occurring in D1 (see above points 3.2.1 and 3.2.2) when the springs exit the mandrel is not described as having any specific function. It can only be seen as the necessary consequence of the fact that the mandrel 56 is provided within the guiding members 120 (the springs necessarily expand when exiting the mandrel since the walls of the mandrel have a certain thickness). There is therefore no reason for a person skilled in the art to consider implementing this partial expansion of the springs known from D1 in the method and system of D2.

3.3.4 The appellant II in fact only presented arguments concerning inventive step taking document D1 as the starting point. However, even starting from D1 there is no reason for a skilled person to modify the known method and system such as to arrive at a method and system falling within the scope of claims 1 and 13, respectively, of the patent in suit.

Indeed, forming the transverse seams after the respective spring has expanded would mean forming both the transverse seams enclosing a spring after the spring has left the mandrel 56. This would imply that a spring pushed by head 58 (see Fig. 4) does not abut against a previously formed seam but against a spring. This, however, is contrary to the specific teaching of D1 that a spring should abut against a previously formed seam (see col. 14, lines 9 to 13) and moreover represents a possibility that would be discarded by a skilled person since it could lead to undesired entanglement of the springs.

Even assuming that the transverse seam is formed in the configuration shown in Fig. 5, between a first spring completely outside the mandrel 56 and a second spring within the mandrel, as submitted by appellant II, there is no reason for a skilled person to consider allowing the spring to exit the mandrel for a distance such that the spring is allowed to expand (i.e. about half of its width). In fact, the skilled person would rather consider to maintain the spring well within the mandrel during the operation of the welding head such that the spring does not interfere with the adjacent spring, with the welding head 100U during the descent of the latter, and with the fabric (which is supported by the upper surface of the mandrel and is displaced by the welding head).

3.3.5 Therefore, the subject-matter of independent claims 1 and 13, and likewise of dependent claims 2 to 12 and 14 to 20, is not obvious to a person skilled in the art (Article 56 EPC).

3.4 It follows that the patent documents in accordance with the first auxiliary request of appellant I form a suitable basis for maintenance of the patent in amended form.