T 0229/08 26-01-2010

1. Conventional aircraft are designed to maximise the revenue generation of passenger cabin space by providing either accommodation for the highest number of passengers or facilities which enable accommodation of passengers paying premium rates. However, for long-haul flights additional accommodation is necessary to provide rest facilities for crew. In accordance with the present patent such rest areas are provided in a way as not to impact on revenue generation. A rest area is provided in the crown space of the fuselage above the ceiling of the passenger cabin and is accessed from a landing.

State of the art

2. The board concurs with the finding of the opposition division that M2 does not contain all features of claim 1 and the respondent does not challenge this finding. It follows that the first claimed date of priority is not valid and M4, M5 and M7 form state of the art within the meaning of Article 54(2) EPC 1973.

3. The opposition division disregarded M12 because it was late-filed and prima facie availability to the public before the second claimed date of priority could not be established. M12 had been filed on the last working day before the oral proceedings and whilst the appellants do not challenge that M12 was late-filed, they argue that it is highly relevant and that the opposition division had a duty to postpone the oral proceedings to investigate the matter of its public availability. The appellants request the board to admit M12 into the proceedings.

3.1 Article 12(4) RPBA essentially provides that everything presented in the statement setting out the grounds of appeal shall be taken into account by the board but "without prejudice to the power of the Board to hold inadmissible … evidence … not admitted in the first instance proceedings …". The appellants argue that late-filed evidence should be disregarded during the appeal procedure only if it raises technical or legal questions which are so complex that they cannot be dealt with without postponing oral proceedings implies that any evidence submitted in a statement setting out the grounds of appeal must be taken into consideration. However, that would run contrary to the provision of Article 12(4) RPBA setting out the board's power to do otherwise. Decision G 7/93 (OJ EPO 1994, 775) relates to review of discretionary decisions taken by the first instance, albeit in the context of the exercise of discretion in accordance with Rule 86(3) EPC 1973. The Enlarged Board of Appeal states: "If a first instance department is required under the EPC to exercise its discretion in certain circumstances, such a department should have a certain degree of freedom when exercising that discretion, without interference from the Boards of Appeal." The phrase "under the EPC" is a clear indication that the Enlarged Board of Appeal intended this statement to be applicable beyond the restricted provision of Rule 86(3) EPC 1973. The present board therefore considers that it is in the first place charged with reviewing the opposition division's exercise of its discretion. Decision T 633/97 (not published in OJ EPO), to which the appellants refer, relates only to evidence which is first filed during appeal proceedings and is therefore not relevant to the present case. The appellants' argument that the board's approach to this matter would encourage parties to delay the late filing of documents until filing an appeal is not valid. The provision of Article 12(4) RPBA relates to evidence which not only was not admitted but also "could have been presented" in first instance proceedings. It is therefore evident that in both cases the board would have equal power to hold late-filed evidence inadmissible, whereby the party filing the evidence during appeal would have to overcome the additional hurdle of satisfying the board that its action in first presenting it in the statement setting out the grounds of appeal did not amount to tactical abuse, see T 718/98 (not published in OJ EPO).

3.2 During the oral proceedings before the opposition division a total of more than one hour was spent on consideration of whether M12 should be introduced, in particular as to whether it had been shown to have been made available to the public. In the contested decision the opposition division clearly explains why it considered that the opponents had failed to show that M12 was available to the public before the second priority date and therefore why it disregarded it in accordance with Article 114(2) EPC 1973. The board considers that in so doing the opposition division acted in accordance with the right principles and exercised its discretion in a wholly correct way.

3.3 The board therefore refuses the request of the appellants to introduce M12 into the procedure.

Main request

Novelty

4. M4 also relates to the provision of a rest area for crew in aircraft, positioned above the ceiling of the passenger cabin. Steps lead from the floor of the passenger cabin to the rest area which comprises an aisle bounded by bunks and, in some embodiments, a lounge area. M4 comprises seventeen figures showing various embodiments and concentrates on the layout of the rest area itself. The appellants rely on measuring the relative dimensions of the aisle and the steps in one embodiment to determine the size of a side of the landing and thereby arrive at its area. Since the drawings are diagrammatic, however, it has to be considered whether they serve to convey a technical teaching to the skilled person, see e.g. T 272/92 (not published in OJ EPO). Figures 2 to 4 are described as all illustrating the same embodiment, figure 2 being "a diagrammatic cross-section", figure 3 being "a diagrammatic top plan of the aft portion of the aircraft of figure 2" and figure 4 being "a diagrammatic top perspective of an overhead rest area in accordance with figure 3". In accordance with figure 3 the stairway is incorporated together with an equipment bay in a passenger cabin module in the transverse centre of the aircraft. The stairway comprises a first group of steps leading transversely upwards to a landing followed by a second group leading longitudinally upwards. The drawing illustrates three risers in the first group and four in the second. In the perspective view of figure 4, on the other hand, it is not apparent that there is a landing, there being merely a straight stairway of seven steps visible. If the uppermost step of that stairway were in fact a landing there would be at least six steps leading transversely upwards to it. This is clearly inconsistent with figure 2. Inconsistency between drawings which are described as illustrating the same respective embodiments occurs also in respect of figures 6, 7 and 12, 13. As a result, M4 cannot be regarded as conveying a teaching to the skilled person as regards the relative dimensions of the steps, landing and aisle. Even if M4 were to be found to reliably teach a number of steps between the landing and the aisle, the appellants' assertion that the dimensions of each step and of the aisle would be determined in accordance with industry standards could not be accepted as no such standards have been made available as evidence in the file. It follows that the features of the at least 0.55 m**(2) area of the landing and the maximum 90 cm dimension in claim 1 are not disclosed.

5. M5 also relates to an aircraft having provision for rest areas for crew but they are below the deck of an otherwise generally conventional passenger cabin. It follows that there is no disclosure of at least the feature of a compartment in a crown space above the ceiling of the passenger cabin.

6. The parts of M7 on which the appellant relies and which are potentially relevant to novelty of present claim 1 are essentially identical to the corresponding content of M4 and the board's findings set out under point 4 above apply in equal measure.

7. M11 relates to a mezzanine structure for increasing the passenger carrying capacity of an aircraft. A supporting wall located on the longitudinal centre line of the floor of the passenger cabin supports an upper deck which is accessible by stairways at each end and which comprises a central aisle between lines of seats positioned on a floor somewhat raised above the aisle. The ceiling of the passenger cabin is close to the upper lobe of the fuselage. The appellants argue that the underside of the structure defines a ceiling whereby an aperture would be formed at each end of the structure and the aisle would form a landing. However, even if the aisle were considered to be a landing it would be neither below at least a portion of what the appellants consider to be the "aperture" nor in a passenger cabin module i.e. in a structure such as may be used in an aircraft to house a galley or toilet, as required by present claim 1.

8. It follows from the foregoing that none of M4, M5, M7 and M11 discloses all features of present claim 1 and the board concludes that the subject-matter of claim 1 is new. Since claims 2 to 7 contain all features of claim 1 the same conclusion is applicable to them.

Inventive step

9. The board concurs with both parties that the closest state of the art is the disclosure of M4 which does not include the features that the landing:

- has a minimum area of at least 0.55 m**(2); and

- is positioned no more than 90 cm below the floor of the compartment.

9.1 The respondent argues that these two features in combination permit the landing to be used as an area for a crew member to change his clothes, whereby the 90 cm dimension would permit access to articles present in the compartment in which no provision for standing upright would be necessary. A further function attributed to the landing is that of a passing location. The corresponding problem to be solved would be to improve the utility of the arrangement disclosed in M4. The appellants argue that the advantages which the respondent attributes to the subject-matter of claim 1 are not, in fact, achieved by the features of the claim but only by a combination of further disclosed features. However, the board is satisfied that, whilst certain additional features would better permit the advantages to be achieved, the claimed features do represent the minimum necessary for rendering them achievable. The appellants further argue that the two features of claim 1 which are new with respect to M4 are to be considered independently and solve the respective problems of permitting turning on the landing and improving access from the landing to the aisle. However, these statements of problem include a pointer to the solution offered by the subject-matter of present claim 1 and therefore do not result from a correct application of the problem/solution approach, see T 229/85 (OJ EPO 1987, 237).

9.2 The landing as disclosed in some embodiments of M4 serves merely as an intermediate platform between mutually orthogonal sections of the stairway, the only function attributed to it being related to safety, albeit in the absence of any further explanation. The appellants argue that a passing location is provided only in embodiments in M4 comprising no landing, thereby suggesting that the landing implicitly has that function. However, in each embodiment having a passing location it is positioned in a lounge area which in the embodiment of figure 9 is provided in combination with a landing on the staircase. Moreover, whilst the passing location in the lounge is mentioned in each embodiment in which it is present, the only function associated with the landing is safety. It follows that M4 provides no motivation to the skilled person to consider the landing as serving any purpose other than as an intermediate step in the stairway. The skilled person therefore would not choose to dimension the landing to permit crew members to pass. Since the landing is shown as being essentially square and defined by the steps above and below it, an area of at least 0.55 m**(2) would imply a step width of some 0.75 cm. Such a dimension would not be readily chosen by the skilled person putting into effect the teaching of M4, particularly the teaching that non revenue-generating space in the aircraft is at a premium.

9.3 The appellants further take the view that the two features of 0.55 m**(2) and 90 cm both would result from a mere optimisation of parameters when putting into effect the teaching of M4. However, as already set out in the preceding paragraph, the skilled person would not select a step width so large as to create a landing of 0.55 m**(2) area in the light of the teaching of M4 alone. Also, there is nothing in M4 which directs the attention of the skilled person to the vertical spacing between the landing and the floor of the compartment so the argument that he would 'optimise' this to a value of 90 cm or less is pure conjecture.

10. M6, which was published in 1920, relates to a railway sleeping car. It aims to improve on space utilisation when beginning from a state of the art in which beds were arranged at two levels in differing orientations. In a second embodiment according to M6 a bed in one compartment is located above the ceiling of another compartment and accessed via a ladder having a platform at its upper level. The appellants see this as a teaching to the skilled person to modify the arrangement according to M4 to arrive at the subject-matter of present claim 1. The board does not agree with that view. Firstly, the skilled person seeking to improve the teaching of M4 would not expect and therefore not seek inspiration from a document in a different technical field dating from some 80 years earlier. Secondly, M6 is wholly silent as regards the platform, in particular its size and position relative to the upper floor so that even if the skilled person were to consider it he would learn nothing which would cause him to adopt the presently claimed features. Indeed, the steps in M6 lead from a compartment which in itself is adequately proportioned whereby the platform evidently serves no purpose beyond that of a convenient uppermost step.

11. On the basis of the foregoing the board concludes that the subject-matter of present claim 1 is not rendered obvious by the available state of the art. The board therefore finds that the subject-matter of claim 1 involves an inventive step. Since claims 2 to 7 contain all features of claim 1 that finding applies in equal measure to them. Under these circumstances consideration of the respondent's auxiliary requests would be superfluous.