T 0800/22 22-05-2024

Reasons for the Decision

1. The appeal is admissible.

2. The subject-matter of claim 1 is new over E1 and E1' (belonging to the same patent family as E1), since at least feature 1.8 ("the center or midpoint of the first ball hinge construction (30, 60, 20) and the center or midpoint of the second ball hinge construction (60, 30) substantially coincide, such that the first ball hinge construction and the second ball hinge construction substantially form a double ball hinge construction or a compound ball hinge construction") is not known therefrom (Article 54 EPC).

In particular, figure 5 (as well as figures 1 to 4, 6 belonging to the same embodiment) discloses "a double- ball or double-pivot mounting assembly" (see E1, paragraph [0018]) comprising a mounting arm 30 with ball joint constructions 30b, 30a formed at opposite ends thereof, for mounting to the base portion 28 and to the mirror casing 12, respectively. These ball joint constructions are therefore clearly and unambiguously arranged at a distance (corresponding to said mounting arm's length) such as to form two distinct and separate ball joints or pivot joints, which are not concentric.

The Appellant's allegation that said two ball joint constructions would be implicitly implemented by the skilled person as "substantially" (i.e. within manufacturing tolerances) concentric ball joints (as required by disputed feature 1.8 of claim 1) manifestly lacks an objective and factual basis in E1. Moreover, E1 fails to disclose any possible actual implementation of such a "substantially" concentric ball joint construction, let alone to give any suggestion in this respect.

Indeed, E1 merely states in paragraph [0031] that "optionally, the mounting assembly may comprise other types of mounting configurations, such as a single-ball or single-pivot mounting configuration or the like, while remaining within the spirit and scope of the present invention".

The same applies for the embodiment of figure 12, to which said paragraph [0031] is actually directly related.

The further embodiment of figures 13 to 17 merely discloses (at least partly) the constructional elements of a further embodiment including a ball joint construction for mounting an extremity of said mounting arm (not shown in figure 13) to said mirror casing 12', wherein a receiving portion (or ball socket) 22b' is provided with a "spring ring or pressure applying element 23'" (see E1, paragraph [0024]) in order "to apply generally even pressure around the ball socket to control the torque/effort required to adjust the mirror casing relative to the ball member of the mounting arm". Thus, said pressure applying element 23' does not constitute (as alleged by the Appellant) a second spherical element of a second ball joint construction, given it being merely a part of a first ball joint construction comprising said ball member and said ball socket 22b'.

Finally, for E1' the same arguments apply as for E1, E1' disclosing in figure 4 a "single-ball or single-pivot mounting assembly" which may be optionally replaced by a "double-ball or double-pivot mounting configuration" (see E1', paragraph [0016]), and disclosing in figure 6 a "double-ball or double-pivot mounting assembly" which may be optionally replaced by a "single-ball or single-pivot mounting configuration" (see E1', paragraph 0038]. Thus in E1', similarly to E1, said "double-ball or double-pivot assembly" comprises two distinct and separate ball hinge constructions, mounted at the extremities of a mounting arm (as illustrated in figure 6), no explicit or implicit disclosure of claimed feature 1.8 being therefore derivable from E1'.

3. The subject-matter of claim 1 is new over E2 (Article 54 EPC), for at least features 1.7 ("the support (6) is mounted movably relative to the supporting frame (3) at least partly with the aid of a second ball hinge construction (60, 30), and") and 1.8 are not known therefrom.

Indeed, the embodiment of figure 8 in E2 merely discloses a single ball hinge construction 13 (see E2, paragraph [0074]) including both pivoting axis 08 and 09 (the same applies for figures 7 and 9).

Dependent claim 12 does in no way alter or change the fact that no second ball hinge construction is explicitly or implicitly disclosed in E2, claim 12 being formulated broadly (see "at least one pivoting connection") in order to cover or encompass the embodiments of figures 1 to 6, generally including pivoting connections 05, 06, 07 ("gelenkige Verbindung"), as well as those of figures 7 to 9, including a single ball hinge construction. Thus, the skilled person would not implicitly derive from claim 12 any instruction or indication to implement a second ball hinge construction in the embodiment of figure 8, not to mention a double ball or compound ball hinge construction.

4. The subject-matter of claim 1 is new over E3 (or E3'), since E3 at least does not disclose an actuator according to feature group 1.3 ("a first actuator (4) with which the supporting frame (3) is pivotable relative to the base part (2) about a first hinge axis (5) extending in a substantially upward direction between a folded-in position and a folded-out position") or 1.5 ("a second actuator (7) with which the support (6) is pivotable relative to the supporting frame (3), said support (6) being pivotable relative to the supporting frame (3) only about a second hinge axis (8) extending substantially transversely to the substantially upward direction") of claim 1 (Article 54 EPC).

In the Board's view, the term "actuator" has to be understood as a part of a machine or system that moves something or makes something work, not necessarily implying that the movement has to be imparted by a motor or a machine. Even with this broad understanding, an actuator "with which the supporting frame is pivotable relative to the base part" is not derivable from E3.

In effect, based on the assumption (following the Appellant's arguments) that a supporting frame 24 (see E3, figures 1,2; description column 3) is pivotably arranged on a base part 5,7 about a first hinge axis "a" (as required by feature group 1.3), and that a support 2,8,9, is pivotable about a second hinge axis "b" about said supporting frame 24 (as required by feature group 1.5), it ensues from the overall disclosure of E3 that these pivoting motions are both necessarily produced by direct manual acting (albeit in different ways) on one and the same constructional element 2,8,9 constituting said support and also the mirror casing. Indeed no specific first and second actuators or means are disclosed in E3 for performing said pivoting motions.

Therefore, it can only be concluded that either there are no first and second actuators at all disclosed in E3, or (regarding said mirror casing or support 2,8,9 as an actuator) that merely a single actuator is provided. Thus, in both cases the requirements of feature groups 1.3 and 1.5 are not fulfilled, given that the wording of claim 1 requires at least two distinct and separate actuators.

The Appellant's contention that E3, and particularly e.g. claim 1 of E3 (or E3'), implicitly discloses a first and second actuator is manifestly erroneous, since an implicit disclosure is given only if the disputed feature is derivable in a clear and unambiguous manner from the overall disclosure of a document, which is presently obviously not the case, as said mirror casing acts as the sole actuator apt for performing both said pivoting movements (about the axis "a" and "b").

Finally the Board notes that the question of whether or not said constructional element 24 ("Gleitblock") can rightly be regarded as forming a supporting frame within the meaning of claim 1 (as contended by the Appellant) may be left unanswered, novelty of the claimed subject-matter over E3 being anyway given.

5. The subject-matter of claim 1 (main request) is not rendered obvious in view of E1 in conjunction with common general knowledge, or with F1 or with E2 (Article 56 EPC).

Starting from E1 the skilled person would have no valid reason or motivation for implementing a "double ball hinge construction" as defined in features 1.6 to 1.8 of claim 1. In effect, as abundantly discussed above (see novelty discussion), E1 already provides two alternatives for mounting the mirror casing to the mounting base, namely either by means of a single-ball mounting configuration or by means of a double-ball mounting assembly. These alternatives already provide at least two rotational degrees of freedom and also have a compact configuration and construction (particularly the single-ball mounting configuration), while also allowing a precise orientation and operation of the mirror casing by means of the mounting arm.

Therefore, the skilled person would not be incentivized to replace the ball hinge construction of E1 with a double ball hinge construction as defined in claim 1, which is more complex and less robust, due to the concentric arrangement of two ball hinge assemblies, while not being more compact or precise than the ball joint construction shown in E1 (due to the only "substantially" coinciding centres or midpoints). E1 gives no further suggestions or indications relating to any specific common general knowledge which would lead to disputed feature 1.8 of claim 1.

Further, the technical teaching of F1 would not be implemented in an obvious manner by the skilled person in the device of E1, F1 disclosing essentially a ball hinge construction allowing to pivotably connect one or more struts ("Streben") in one point, each strut being independently pivotable (rotatable) (with respect to the other struts) about all three directions in space (F1, see "Erläuterung der Erfindung und ein Ausführungsbeisspiel"; "Zusammenfassung").

Thus F1 includes more or i.e. redundant degrees of freedom than needed as compared to E1 disclosing only one mounting arm (similarly to claim 1 of the invention), given the independent pivotable motion of each of said struts of F1 about one single pivoting point. Therefore, not only the combination of E1 with F1 would not be obvious for the skilled person, but also the implementation of the technical teaching of F1 in the device of E1 would not obviously and directly lead to the claimed subject-matter, given further steps on the part of the skilled person being needed.

The combination of E1 and E2 would not lead to the claimed subject-matter, particularly to feature 1.8, as it already ensues from the discussion of novelty with respect to E2 (see above) that the skilled person would not implicitly derive from E2 (specifically from E2, the embodiment of figures 7 to 8, and from claim 12) any instruction, indication or suggestion to implement a second ball hinge construction, let alone a double ball or compound ball hinge construction including concentric first and second ball hinge constructions as defined in feature 1.8 of claim 1.

Therefore, it is immaterial whether or not said groups of features 1.3 and 1.5 are regarded as known from E1 and obvious in view of E2.

6. The subject-matter of claim 1 is not rendered obvious in view of E2 in conjunction with common general knowledge, or with F1 or E3 (Article 56 EPC).

E2, similarly to E1, already discloses several alternatives for pivotably mounting a mirror casing to the mounting base in figures 1 to 6 and 7 to 9 (particularly figure 8). The skilled person would have no valid reason or incentive to adopt the technical features 1.7,1.8 in the device of E2 given that (as already mentioned above) E2 does not provide any instruction, indication or suggestion relating to a specific common general knowledge which would lead the skilled person in an obvious manner to said features.

Moreover (analogously to the device of E1 (see above)) it is also questionable whether the alleged advantages concerning compactness and precision (of actuation) would be at all achieved.

Features 1.7, 1.8 are not rendered obvious for the skilled person starting from E2 in view of F1, the same reasons applying here as for the line of arguments considering E1 in conjunction with F1 (see above).

Starting from E2 the skilled person would not arrive in view of E3 in an obvious manner to the subject-matter of claim 1, as E3 discloses a device having an entirely different structure and configuration as compared to E2. Therefore, it would for instance not be obvious for the skilled to install electric actuators (as disclosed in the device of E2) in the ball joint construction disclosed in E3, which is conceived and designed for manual actuation by acting on the mirror casing and also does not provide sufficient space for said installation. In addition, E2 disclosing a ball joint articulation with only one sliding contact surface (see ball joint 13 in figure 8), it would not be obvious to implement the teaching of E3 (disclosing two sliding contact surfaces; see constructional parts 7, 9, 24 and surfaces defined therebetween) in the device of E2.

7. The subject-matter of claim 1 is not rendered obvious in view of E4 in conjunction with common general knowledge, or F1, E2 or E3 (Article 56 EPC).

E4 differs from claim 1 in that at least features 1.6 to 1.8 are not known from E4, since E4 does not show any ball hinge construction at all, but only two distinct and separate axial bearings with a cylindrical housing H (E4, claim 2, figure 9).

Thus, the skilled person taking E4 as a starting point would not arrive in an obvious manner at the claimed subject-matter, given that a) the axial bearing construction of E4 represents a starting point lying even further away from the claimed subject-matter than the device of E1 and E2; b) the documents or common general knowledge considered for the argumentation are the same as used for the arguments based on lack of inventive step starting from E1 or from E2 (see above).

8. The Board decided to exercise its discretionary power not to admit the line of arguments based on lack of inventive step of the subject-matter of claim 1 of the main request starting from D1 (Article 12(3), (5) RPBA 2020 (Rules of Procedure of the Boards of Appeal version 2020)).

The Board considered that the submissions presented in the statement of grounds of appeal were not sufficiently substantiated such as to provide sufficient information for the Board and the Respondent to understand the arguments corroborating the Appellant's allegations.

In particular, in the statement of grounds of appeal (dated 9 June 2022) the Appellant only mentioned on page 28 that in the "Overview over the 39 auxiliary requests of July 28, 2021" (annexed to the statement of grounds of appeal) arguments (based inter alia on D1) "are attached herewith to outline our arguments, to be presented in full detail where appropriate". Therefore, said "Overview" includes only an "outline" of said arguments based on D1, and moreover it concerns only some of the auxiliary requests, not the main request, which is under discussion.

For these reasons the Board decided not to admit the objection of lack of inventive step (of the subject-matter of claim 1) starting from D1, given that this line of attack was not at all substantiated in the statement of grounds of appeal.

9. The Board notes that in conclusion it was not necessary to decide on the other admissibility issues raised by the Respondent since the further Appellant's objections contested on the grounds of admissibility by the Respondent already failed on substantive grounds.