T 1574/21 01-02-2024

Reasons for the Decision

1. Request for a declaratory judgment

1.1 The appellant requested a declaratory judgment stating that a substantial procedural violation occurred during the proceedings before the Examining Division.

1.2 The request was only aimed at establishing that the examining division had committed a substantial procedural violation. No procedural consequence, such as the reimbursement of the appeal fee or remittal of the case to the Examining Division, was derived from this. Thus, the requested finding has no bearing on the course or outcome of the present proceedings.

1.3 Therefore, the appellant has no interest in legal protection for the requested finding.

1.4 For this reason, the request was not admitted.

2. Main request - amendments

2.1 Claim 1 of the main request has no literal support in the parent application as originally filed.

2.2 The appellant argued that current claim 1 combined the two embodiments disclosed in paragraph [0007] of the description and claims 1 and 14 of the parent application as originally filed. Moreover, according to the appellant, the method steps of current claim 1 followed from, and were implicit in, the use of the Fitt's law-based model.

2.3 However, paragraph [0007] of the parent application as originally filed provides a general disclosure of methods and systems for tracking movement of an oral cleaning device within the mouth, but does not disclose any specific method steps. The cited paragraph, therefore, does not provide support for the particular method of current claim 1.

2.4 Original claims 1 and 14 of the parent application, in turn, disclose specific method steps. However, both methods comprise a step of "calculating", namely, in claim 1 the step of

M1.5' calculating, using Fitt's law and the measured elapsed amount of time, the number of teeth the oral cleaning device was displaced during the elapsed amount of time,

and in claim 14 the step of

M1.7 calculating, using Fitt's law and an elapsed amount of time for the transition, a probability of which of a plurality of possible transitions occurred during the elapsed amount of time.

None of these calculating steps is contained in current claim 1.

2.5 Claim 1, instead, contains feature M1.4 which is directed to

M1.4 tracking movement of the oral cleaning device within the mouth using a Fitt's law-based model and the measured amount of time.

2.6 Step M1.4 neither gives the number of teeth the oral cleaning device was displaced during the elapsed amount of time, nor does it tell the probability of which of a plurality of possible transitions occurred during the elapsed amount of time. Instead, step M1.4 is limited to tracking the movement of the oral cleaning device within the mouth.

2.7 While the use of the Fitt's law-based model per se might imply some calculation taking place, this is not necessarily the specific one described in Features M1.5' or M1.7. Therefore, step M1.4 constitutes a generalisation of steps M1.5' and M1.7 which is not directly and unambiguously derivable from the parent application as originally filed.

2.8 Hence, claim 1 of the main request contravenes the provision of Article 76(1) EPC.

3. First and second auxiliary requests - amendments

3.1 Claim 1 of the first auxiliary request is identical to claim 1 of the main request.

Claim 1 of the second auxiliary request corresponds to claim 1 of the main request with the exception that the phrase "at the first location" has been added to feature M1.3. This phrase has no bearing on the above discussed generalisation of the original disclosure of the parent application.

3.2 Therefore, the above conclusion on the main request (see point 2. above) applies equally, so that the first and second auxiliary requests do not comply with the provision of Article 76(1) EPC.

4. Auxiliary request 2A - clarity

4.1 Claim 1 of auxiliary request 2A comprises two methods for localizing an oral cleaning device within a user's mouth, namely those of claims 1 and 14 of the parent application as originally filed.

4.2 The claimed methods involve tracking a transition or movement defined by a start and a stop. In the first step of both methods (feature M1.1), a "first location" of the oral cleaning device within the user's mouth is determined.

In the second step of the first method, an amount of time elapsing between a start and a stop of a movement of the oral cleaning device within the user's mouth is measured (feature M1.3').

In the second step of the second method, a transition of the oral cleaning device from the "first location" to a "second location" within the user's mouth is detected (feature M1.2).

4.3 Therefore, in the context of the claim, the skilled person understands the expression "the first location" to designate the starting point of the movement, while "the second location" designates the stopping point.

4.4 With this understanding, however, the phrase "at the first location" at the end of feature M1.3' does not technically make sense. In fact, a movement between a start and a stop, wherein "the first location" designates the starting point, cannot be measured "at the first location". Hence, claim 1 is not clear within the meaning of Article 84 EPC.

4.5 The appellant argued that "the first location" can be a region in the user's mouth, as explained in paragraphs [0010] and [0011] of the description.

4.6 With this understanding, however, step (iv) of feature 1.6 of the claimed method cannot be carried out. This step requires (emphasis added)

M1.6 (iv) determining, based on the first location and the number of teeth the oral cleaning device was displaced during the elapsed amount of time, which of the user's teeth were included in the displacement.

The specific teeth, which were included in the displacement, can only be identified if the starting point of the oral cleaning device is known. A region, in contrast, comprises several teeth and therefore makes it impossible to tell which of the teeth of this region were included in the displacement.

4.7 Thus, the appellant's understanding of the expression "the first location" does not render the claim clear, either.

4.8 Auxiliary request 2A, therefore, does not comply with the provision of Article 84 EPC.

5. Auxiliary request 2B, 2C and 2D - admittance

5.1 The objection under Article 84 EPC against claim 1 of auxiliary request 2A, which is detailed under point 4. above, had already been raised under points 2.2, 2.3 and 2.5 of the Board's communication pursuant to Article 15(1) RPBA addressing point 7.3 of the appellant's statement setting out the grounds of appeal.

5.2 However, it was only during the oral proceedings before the Board that the appellant reacted to this objection and filed auxiliary requests 2B, 2C and 2D, which contained an amended claim 1.

5.3 The admittance of each of these requests falls under the provision of Article 13(2) RPBA, which stipulates that any amendment to a party's appeal case made after notification of a summons to oral proceedings shall, in principle, not be taken into account unless there are exceptional circumstances, which have been justified with cogent reasons by the party concerned.

5.4 The appellant did not dispute that these requests represented an amendment to its case. However, it did not provide any reasons why auxiliary requests 2B, 2C and 2D were filed at such a late stage. Therefore, the principle laid out in Article 13(2) RPBA applies and auxiliary requests 2B, 2C and 2D are not admitted into the appeal proceedings.

6. Third and fourth auxiliary requests - amendments

6.1 Claim 1 of the third auxiliary request is directed to a controller configured to perform the method steps of claim 1 of the main request.

Claim 1 of the fourth auxiliary request is identical to claim 1 of the third auxiliary request.

6.2 Therefore, the above conclusion on the main request (see point 2. above) applies mutatis mutandis, so that the third and fourth auxiliary requests do not comply with the provision of Article 76(1) EPC.

7. Fifth to seventh auxiliary request - clarity

7.1 Claim 1 of the fifth auxiliary request is directed to a controller configured to perform the method steps of claim 1 of auxiliary request 2A.

Claim 1 of the sixth auxiliary request is identical to claim 1 of the fifth auxiliary request.

Claim 1 of the seventh auxiliary request corresponds to claim 1 of the fifth auxiliary request with the exception that the second method is deleted.

7.2 Claim 1 of all three requests, respectively, contains features C1.3' and C1.6, which read as follows:

C1.3' (ii) measure, using sensor information received from the motion identifier, an amount of time elapsing between a start and a stop of a movement of the oral cleaning device within the user's mouth at the first location; and

C1.6 (iv) determine, based on the first location and the number of teeth the oral cleaning device was displaced during the elapsed amount of time, which of the user's teeth were included in the displacement

7.3 As detailed under point 4. above, a lack of clarity arises from the expression "the first location". If the skilled person understood "the first location" to mean the starting point of the movement, the phrase "at the first location" at the end of feature C1.3' does not technically make sense. If, alternatively, the skilled person understood "the first location" to designate a region in the user's mouth, feature C1.6 could not be carried out.

7.4 Therefore, the above conclusion on auxiliary request 2A (see point 4. above) applies mutatis mutandis, so that the fifth to seventh auxiliary requests do not comply with the provision of Article 84 EPC.

8. Eighth and ninth auxiliary requests - amendments

8.1 Claim 1 of the eighth auxiliary request is directed to an oral cleaning device comprising a motion identifier and a controller in communication with the motion identifier, wherein the controller is configured to perform steps C1.1, C1.2, C1.3' and C1.4 of claim 1 of the third auxiliary request (see point 6. above).

8.2 Claim 1 of the ninth auxiliary request corresponds to claim 1 of the eighth auxiliary request with the exceptions that the motion identifier additionally comprises a sensor system, and that the controller is not claimed as being in communication with the motion identifier. However, these amendments have no bearing on the above discussed generalisation of the original disclosure of the method steps (see point 2. above), which are now performed by the controller.

8.3 Therefore, the above conclusion on the main request (see point 2. above) applies mutatis mutandis, so that the eighth and ninth auxiliary requests do not comply with the provision of Article 76(1) EPC.