T 0933/09 05-06-2012

I. The applicant lodged an appeal against the decision of the Examining Division, dispatched on 29 October 2008, refusing European application No. 01 991 976.0.

II. The application had been refused by the Examining Division on the grounds that claim 1 did not fulfil the requirements of Article 123(2) EPC. The Examining Division had objected, inter alia, that no basis for the "initial algorithm" and "subsequent algorithm" defined in the characterising portion of feature e)iii) of claim 1 of the main request could be established, particularly since the features of these algorithms seemed to be cherry-picked from the description, leading to an intermediate generalisation which went beyond the content of the original application (points 4.1 and 4.2 of the Reasons of the impugned decision).

III. The notice of appeal was received on 18 December 2008 and the appeal fee was paid on the same day. With the statement setting out the grounds of appeal, received on 19 February 2009, an amended set of claims comprising a reworded claim 1 was filed. This claim no longer includes the features of section e)iii) objected to in the impugned decision, but, according to the appellant's statement, "includes all the steps necessary to carry out the algorithm described in the flow diagram 106 (figure 6) and consequently further comprises all the steps needed to perform the processing of blocks 204 and 206; support of this features can be easily found in the description from page 8 line 6 to page 34 line 13."

IV. Claim 1 reads as follows (underlinings and strikethrough text added by the Board to indicate, respectively, features added to and deleted from claim 1 of the main request on which the impugned decision was based):

"A computer readable medium having an executable component for adjusting fractionally inspired oxygen delivery (FiO2) for a patient in response to receiving an arterial hemoglobin oxygen saturation (SpO2) signal, wherein the executable component contains [deleted: computer executable instruction for: ]

computer-executable instruction for increasing a hypoxemia, hyperoxemia, or normoxemia adjust interval counter and computer-executable instruction for:

a) specifying a plurality of hemoglobin oxygen saturation levels [deleted: and ]being a normoxemic, a hyperoxemic and a hypoxemic target range;

b) reading the arterial hemoglobin oxygen saturation signal;

c) determining if the arterial hemoglobin oxygen saturation signal is a valid signal;

d) if the hemoglobin oxygen saturation signal is a [sic] not a valid signal, determining a value for the fractionally inspired oxygen delivery to the patient based on backup value;

e) if the hemoglobin oxygen saturation signal is a valid signal,

i) determining the hemoglobin oxygen saturation level based on the arterial hemoglobin oxygen saturation signal [deleted: as being in one of the normoxemic, the hyperoxemic and the hypoxemic ranges ];

ii) determining a trend by calculating a slope using a plurality of recent hemoglobin oxygen saturation signals;

iii) if a closed loop mode is enabled, [deleted: determining the fractionally inspired oxygen to deliver to the patient based on the hemoglobin oxygen saturation level and the trend indicated by the slope; ]

1) Reading the SpO2 signal and storing it as SpO2READ

2) Checking if SpO2READ is within the acceptable SpO2 range

3) If SpO2 is not within the acceptable SpO2 range

then

• Alerting the user

• performing the SpO2 signal OUT processing by setting FiO2 Set is the FiO2 backup level,

4) If SpO2 is within the acceptable SpO2 range then performing the SpO2 signal OK processing and:

• classifying and confirming the actual SpO2 level using counters of time continuously updated

• performing appropriate timing processing based on SpO2READ and

o if SpO2 READ is in the target range for normoxemia then performing normoxemia timing

o if Sp02 READ is greater than the target range then performing hyperoxemia timing

o if SpO2 READ is less than the target range then performing hypoxemia timing

• performing SpO2 slope calculation

• determining the FiO2 max and min timing

• checking if closed loop control is enabled and

if so performing FiO2Set determination

if not setting FiO2Set to FiO2Backup

• determining if FiO2 Base Calc is enabled and performing FiO2Base Determination

• performing FiO2Set checking

• performing FiO2Base/backup checking

• passing the updated FiO2Set value to the output routine that control the air-oxygen mixer

5) monitoring if user settings have been changed and if so updating the variables according and starting again from iii;

iv) if the closed loop mode is not enabled, determining the fractionally inspired oxygen to deliver to the patient based on the backup value; and

f) delivering the fractionally inspired oxygen to the patient[deleted: , ]

[deleted: characterized in that in step iii) ]

o [deleted: an initial algorithm calculates a respectively initial increase/decrease of the fractionally inspired oxygen as a function of the calculated negative/positive trend of the hemoglobin oxygen saturation level, and ]

o [deleted: a subsequent algorithm determines adjusting of the fractionally inspired oxygen proportional to the slope of the hemoglobin oxygen saturation level ]."

V. In an annex to the summons to oral proceedings under Article 15(1) RPBA dated 12 March 2012, the Board informed the appellant of its provisional view that the appeal did not seem to comply with Rule 99(2) EPC and was therefore likely to be rejected as inadmissible pursuant to Rule 101(1) EPC.

VI. Oral proceedings took place on 5 June 2012.

The appellant requested that the decision under appeal be set aside and that the case be remitted to the department of first instance for further prosecution.

VII. The arguments of the appellant are summarised as follows:

With its statement of grounds of appeal, the appellant had removed from claim 1 the wording objected to by the Examining Division. Thus, in the light of decision T 934/02, the present appeal should be considered sufficiently substantiated within the meaning of Article 108, third sentence, EPC, since amended claims had been filed which deprived the contested decision of its basis, even though it did not state any specific reasons why the contested decision was wrong. Claim 1 attached to the statement of grounds of appeal no longer contained the wording objected to in the decision. Instead, the appellant had introduced all the technical features of the embodiment of Figure 6, supplemented by those features of Figures 7 and 8 explicitly referred to in Figure 6. The arguments provided in the statement of grounds of appeal relating to the fulfilment of the requirements of Article 123(2) EPC were indeed quite concise, and the reference to the description was indeed quite broadly worded. The additional arguments presented in response to the communication from the Board should be considered as a clarification of the quite concise arguments in the statement of grounds of appeal.

The appellant also explained that when the statement of grounds of appeal was filed it had been fully convinced that, based on the amended set of claims, the Examining Division would have rectified its decision under Article 109 EPC and full examination would have continued based on the amended set of claims.