T 0991/07 30-03-2010

1. The appeal complies with the requirements of Articles 106 to 108 EPC 1973 and Rule 64 EPC 1973. It is, thus, admissible.

2. Procedural matters

2.1 The Board accepts that the objections relating to the lack of clarity, which were raised by the Board in its communication pursuant to Article 15(1) RPBA, have been resolved by the amendments to independent claim 1 filed on 26 February 2010. However, in the Board's judgement, these amendments create new ambiguities as to the claimed subject-matter. Thus, the question arises whether the Board can base a decision on objections which would be new to the appellant, but which could not be communicated to it, due to the fact that it was not present at the oral proceedings, without infringing the appellant's right to be heard (Article 113(1) EPC).

2.2 Article 15(3) RPBA (Supplement to OJ EPO 1/2009, 41) reads: "The Board shall not be obliged to delay any step in the proceedings, including its decision, by reason only of the absence at the oral proceedings of any party duly summoned who may then be treated as relying only on its written case". The jurisprudence of the Boards of Appeal has underlined that this provision is to be interpreted in combination with Article 12(2) RPBA, according to which the statement of grounds of appeal shall contain a party's complete case (cf. Singer/Stauder "Europäisches Patentübereinkommen 5th. edition, Article 113, § 42). This approach, however, cannot be taken to extremes, since a party's case may be amended in the course of the appeal proceedings and thus may give rise to new objections to be dealt with as a consequence of these amendments being admitted and considered by the Board in the exercise of its discretional power (Article 13(1) RPBA).

The Board is nevertheless of the opinion, in line with established case law (cf. e.g. decisions T 823/04, point 1, T 1059/04, point 1, neither of them published), that in such a situation an appellant who has decided not to attend oral proceedings has nonetheless had the opportunity to do so and that the requirements of Article 113 EPC are thus met.

2.3 As underlined in decision T 1704/06 (not published), point 7, this approach is corroborated by the explanatory note to Article 15(3) RPBA (former Article 11(3) RPBA), which note reads: "This provision does not contradict the principle of the right to be heard pursuant to Article 113(1) EPC since that Article only affords the opportunity to be heard and, by absenting itself from the oral proceedings, a party gives up that opportunity" (cf. CA/133/02, 12 November 2002).

Since it is incumbent on both the EPO and users of the European patent system who are parties to proceedings before it to act in good faith (G 2/97, OJ 1999, 123, point 4.2), a further justification for this approach may be seen in the fact that a party who files substantive amendments to its case and then deliberately absents itself from oral proceedings in order to avoid any adverse decision being reached would infringe this general principle. This would especially be true in situations such as the present, where the appellant had initially requested that oral proceedings be held. The Board further observes that a different conclusion, in particular one that would recognise under such circumstances the need for further exchanges between the board and the appellant before a decision could be taken, might imply that such amendments to a party's case would have to be considered inadmissible under Article 13(1) RPBA as being contrary to the principle of procedural economy.

2.4 Consequently, as observed in decision T 1704/06: "in the situation where an appellant submits new claims after oral proceedings have been arranged but does not attend these proceedings, a board has a number of different options. It can continue the examination in writing, remit the case, grant a patent, or reject the claims as inadmissible. But it can also refuse the new claims for substantive reasons, specifically lack of inventive step, even if the claims have not been discussed before and were filed in good time before the oral proceedings. This will in particular be the case if an examination of these substantive requirements is to be expected in the light of the prevailing legal and factual situation" (cf. T 1704/06, point 7.6). In the present situation, the Board stresses that the appellant had to expect that the conformity of the amended claims with the requirements of Article 84 EPC 1973 would be examined (cf. also T 915/02, point 3).

3. Clarity - Article 84 EPC 1973

3.1 As a consequence of the amendments made, current claim 1 refers to an "altitude" defined with respect to axes of the aircraft body. It is however stressed that the term "altitude" defines, as a matter of ordinary understanding, the vertical distance separating a point in space from the ground level (or possibly the reference sea level). Since, a distance, contrary to a position, is independent from the actual reference axes considered, the association of the term "altitude" to preferred axes leads to ambiguities as to the actual meaning of this term. The present wording suggests that the radar test points comprise two sets of time-stamped X, Y and Z body coordinates: one corresponding to the closest point on the ground and the second one identifying the position of the point vertically separated from the aircraft. This interpretation would however contradict the ordinary understanding of the term "altitude".

3.2 A further lack of clarity arises from the amendment in claim 1 according to which "the computer processes high speed radar data and provides offline processing of real radar data to verify the radar system performance".

According to Webster's dictionary, the definition of the term "offline" is: "not connected to or served by a system and especially a computer or telecommunications system; also: done independently of such a system". Applied to current claim 1, this definition suggests that the claimed computer is adapted to carry out the actual processing required to verify the radar data performance without the assistance of any server or any additional computer.

The passage referred to by the appellant on page 15, lines 20-22 of the published PCT application, according to which "The high speed data collection provides for off line processing of real radar data, off line, using a computer, without the disadvantages of repeated flight tests to adjust radar performance", suggests that a second computer different from the one processing the real radar data in real time would be involved to verify the radar performance. This passage thus suggests that something like a post-flight implementation is contemplated, as suggested in the preceding paragraph of the description. However, it does not support the indication that the same computer processes high speed radar data and also provides later offline processing of said radar data to verify the radar system performance as now recited in current claim 1. In fact, the paragraph on page 15, lines 8-14 suggests, on the contrary, that it is in situations where the radar system performance is to be verified in real time that the processing means may all be implemented on the aircraft, thus defining de facto a single processing system.

For the skilled reader of claim 1 it is therefore impossible to assess what the term "offline" actually refers to.

3.3 Hence, independent claim 1 does not meet the requirements of Article 84 EPC 1973 as to clarity.

4. Moreover, the Board is of the opinion that a clarified claim 1 would not have sufficed to define inventive subject-matter (Article 56 EPC 1973). It is considered that the skilled person would have recognised that prior art systems such as for example those disclosed in WO-A-00/02009 (D1) or US-A-5488563 (D2), whose purpose is to check the reliability of information obtained from various sources, would have constituted suitable starting points for verifying radar data performance. The modifications to be carried out in relation to such known systems to arrive at the claimed subject-matter would then be the direct consequence of the need to adapt such systems to said defined purpose.