T 0465/04 08-06-2005

Reasons for the Decision

1. Admission of the Ground of Opposition under Article 100(c) EPC

1.1 During the proceedings before the Opposition Division, the appellant requested that a ground of opposition under Article 100(c) EPC, which was not raised during the period specified in Article 99 EPC, should be admitted into the proceedings. In particular, it was argued that the feature of claim 1 according to which the "ink supply port (41) is located in the bottom wall (40a), close to one narrow side of said rectangular bottom wall (40a)" was not disclosed in the application as filed. It was, however, decided by the Opposition Division that the ground of opposition under Article 100(c) EPC was not submitted in due time and was not prima facie relevant. The ground was accordingly disregarded by the Opposition Division.

1.2 Claim 2 of the application as filed specifies that "said ink supply port (41) is located in the front of the bottom wall". Whilst the term "in the front of", considered in isolation from the remainder of the document, is not entirely clear, reference to the drawings as filed and, in particular, Figure 3, makes it clear that the term "in the front of the bottom wall" should be understood as meaning "close to one narrow side of said rectangular bottom wall".

1.3 The Opposition Division was thus justified in coming to the prima facie conclusion that the application as filed discloses the feature of claim 1 whereby the supply port is located in the bottom wall of the ink tank, close to one narrow side of the rectangular bottom wall.

1.4 The Board accordingly comes to the conclusion that the Opposition Division correctly exercised its discretion in refusing to admit the ground of opposition under Article 100(c) EPC. The fact that the ground of opposition was disregarded by the Opposition Division therefore does not constitute an abuse of procedure.

It follows that, in accordance with the decision of the Enlarged Board of Appeal G 10/91, the ground of opposition under Article 100(c) EPC could only be considered with the approval of the respondent. Since the respondent has not given such approval, the ground of opposition under Article 100(c) EPC is not admitted into the present proceedings.

1.5 It was argued on behalf of the appellant, referring to the decision T 986/93, that the Board should nevertheless exercise its discretion and admit the ground of opposition under Article 100(c) EPC in conjunction with both Articles 76(1) and 123(2) EPC.

In decision T 986/93, it was held that, if the Board is of the opinion that the Opposition Division exercised its discretion wrongly, the Board is not barred from considering a belatedly submitted ground of opposition. In the present case, however, as set out above, the Board is of the opinion that the Opposition Division correctly exercised its discretion in refusing to admit the ground of opposition under Article 100(c) EPC.

Whilst it may be the case that the respondent would have been able to respond to the introduction of this fresh ground of opposition at the appeal stage, owing to the matter having been discussed during the examination procedure, it is equally the case that nothing prevented the objections under Articles 76(1) and 123(2) EPC being introduced with the notice of opposition.

It is therefore, in view of the decision G 10/91, not appropriate for the Board to go beyond a review of whether or not the exercise of discretion by the Opposition Division under Article 114 EPC constitutes an abuse of procedure.

2. Inventive step

2.1 The closest prior art may be regarded as being represented by document D1, and, in particular, the alternative construction disclosed at page 9, line 26 to page 10, line 3 and also mentioned at page 6, lines 1 to 3 (the page numbering being that as written by hand). In this alternative construction, the capillary system consisting of rods or tubes as shown in Figure 1 is replaced by a fibrous material, such as fibreglass, the packing density of which is increased in the vicinity of the outlet nozzle. The subject- matter of claim 1 differs from this disclosure in that the ink tank has a rectangular bottom wall, the supply port is located close to one narrow side of the rectangular bottom wall, and a plurality of slots communicating with the ink supply port are provided in the interior of the bottom wall.

2.2 The provision of the slots in the bottom wall communicating with the ink supply port can be seen as contributing to the object of the invention as set out in the patent in suit at paragraphs [0003] and [0021], that is, to achieve a stable ink supply which is less subject to environmental variations.

2.3 Document D7 has been cited in the present proceedings as showing slots in the bottom wall of an ink tank. As discussed in the expert's opinion constituting document D8, the photographs constituting document D7 are of an ink tank forming part of a printing head referred to as a PT-80, as shown in Figure 2 of document D8, and which is also mentioned in document D4 (see Figure 5).

As shown in the photographs constituting document D7, a plurality of slots or grooves are provided in the interior of the bottom wall of the ink tank, which communicate with a well surrounding the ink supply port. As appears from document D8, page 4, lines 13 and 14, a flexible foil overlies the ink in the ink tank, which collapses as the tank is emptied and ends up in contact with the bottom of the tank. The purpose of the grooves is thus to enable the ink tank to be emptied in spite of the foil being in contact with the bottom wall of the tank.

This is not, however, the function of the slots specified in claim 1 of the patent in suit, which are provided in the bottom wall of a tank containing a porous member, and whose function is to conduct ink from the porous member to the supply port. Thus, the presence of slots in the ink tank of document D7 would not encourage the person skilled in the art to provide similar slots in the bottom wall of the tank of document D1.

Thus, leaving aside the question of whether or not the ink tank of document D7 was made available to the public before the priority date of the patent in suit, the disclosure of this document would not indicate to the person skilled in the art that the ink tank known from document D1 should be modified by the provision of a plurality of slots communicating with the ink supply port in the interior of the bottom wall of the ink tank.

2.4 A similar conclusion is reached if document D2 is considered to be the closest prior art. Leaving aside the additional distinguishing feature of the provision of a porous member whose pores are progressively reduced in size in a direction towards the ink supply port, there is similarly no inducement for the person skilled in the art to provide a plurality of slots communicating with the ink supply port in the interior of the bottom wall of the ink tank.

2.5 The subject-matter of claim 1 thus involves an inventive step. Claims 2 to 4 are directly or indirectly appendant to claim 1 and relate to preferred embodiments of the ink tank of claim 1. The subject- matter of these claims thus also involves an inventive step.