T 1257/04 19-06-2006

Reasons for the Decision

1. Late filed documents

1.1 With the grounds of appeal the appellant filed a new document which he designated as D2a. This document is an extract of a brochure. This brochure is a different brochure to the brochure of D2 which was filed with the notice of opposition. D2a bears the indication "9/94". No evidence regarding the public availability of the document was filed with the grounds of appeal. One month before the oral proceedings before the Board the appellant filed a statement from Mr. Yli-Vakkuri (D2a.1) to the effect that he had received the leaflet at the glass fair "GLASTEC'94" in November 1994. Mr. Yli-Vakkuri is an employee of the appellant. This statement and the above-mentioned indication are the sole pieces of evidence regarding the public availability of D2a and the possible date of such availability.

In the view of the Board the indication "9/94" on the brochure is of little value as evidence of public availability. Even if this is meant to be a printing date such dates are entered into the draft of the brochure before the brochure is actually printed. There may be a discord between the intended printing date as in the draft and the actual printing date. There may further be a delay between the printing of the brochure and its distribution if it is distributed at all. There may therefore be a considerable delay between the draft printing date and any actual publication. It is well known that the printing of a brochure may be ordered in anticipation of a product launch but that then the product launch is delayed or does not come to fruition. The brochure may hence never be made available to the public or only made available at a much later date than the draft printing date. For these reasons dates printed on brochures have little value without corroborative evidence.

The statement of Mr. Yli-Vakkuri was signed on 5 May 2006 and is related to events which took place in November 1994, i.e. over eleven years earlier. The statement gave no indication of why Mr. Yli-Vakkuri has such a precise memory of the trade fair in 1994. In this respect it may be noted that the respondent has little possibility to provide counter evidence since he would have to prove a negative fact, i.e. that a brochure was not available, which relates to an event that took place more than eleven years previously. If the statement is accepted at face value then this mere statement by an employee of the appellant could, depending upon the content of the brochure, lead to the revocation of the patent. In the opinion of the Board an evaluation of this piece of evidence leads to the conclusion that it is not sufficient to prove that D2a was undoubtedly made available to the public before the priority date of the patent in suit.

It is therefore not immediately apparent that on the basis of the available evidence that D2a was made available public before the priority date. In view of this finding the Board exercises its discretion pursuant to Article 114(2) EPC not to admit D2a and D2a.1 into the proceedings.

1.2 D4 was filed by the appellant one month before the oral proceedings before the Board. The appellant considered that the document showed that certain matters belonged to the common general knowledge of the skilled person before the priority date of the patent in suit. The document was therefore intended to be considered as evidence in this respect. To this end the appellant relied on the introductory part of the description of the document which explained what was known. However, the part of the description relied upon by the appellant did not indicate whether information from a specific document or from general knowledge was being discussed. In this respect one of the passages (cf. column 2, lines 10 to 29) referred to an earlier patent publication. Since it was unclear as to the type of prior art that was being discussed in D4 the Board considered that it could not be concluded that D4 gave any information regarding the common general knowledge. In view of these facts the Board decided that the document was not prima facie relevant and exercised its discretion pursuant to Article 114(2) EPC not to admit the document into the proceedings.

Main request

2. Novelty

2.1 D2 is a brochure which does not bear any printed date. On the copy supplied during the opposition proceedings there is a handwritten remark in Finnish indicating 1994 and a trade fair. The person who wrote that remark and the date when it was written are unknown. There is also a statement from Mr. Yli-Vakkuri dated 19 July 1997 (D2.1) that he received the document at the "GLASTEC'94". This statement was filed with the notice of opposition in August 2002. In contrast to the statement (D2a.1) mentioned above in connection with D2a, the statement D2.1 was written a little less than three years after the date on which the events referred to in the statement took place so that a memory of the event might be considered to be possible. Nevertheless, the Board again notes that the main evidence lies with a statement by an employee of the appellant that the relevant document was available to the public. The Board considers that it would be difficult for the respondent to provide counter evidence since he would have to prove a negative fact, that a brochure was not available, which relates to an event that took place eight years before the notice of opposition was filed and hence eight years before it was presented to the respondent. As already indicated with respect to D2a, if the statement is accepted at face value then this mere statement by an employee of the appellant could, depending upon the content of the brochure, lead to the revocation of the patent.

In the opinion of the Board an evaluation of this evidence leads to the conclusion that it is not sufficient to prove that D2 was undoubtedly made available to the public before the priority date of the patent in suit.

2.2 The appellant considered that the subject-matter of claim 1 is disclosed in D3. D3 is a magazine article whose publication date has not been disputed by the respondent. The article describes separately a cutting machine, a break-out machine and a grinding machine. Towards the end of the article examples of production lines are described. Example 1 of the production line links together the three machines which are described previously in the article. The cutting and break-out machines are simply described as machines. The grinding machine is stated to be capable of grinding two pieces of glass simultaneously (see box on page 93). The grinding machine is described as having a bridge travelling in a Y direction and a grinding carriage on the bridge which travels in the X direction (see page 92, right hand column). The grinding machine is further stated to have two grinding stations and a pair of grinding wheels (see page 93, right hand column).

2.3 The parties disagreed on the questions of whether the production line disclosed in D3 could be considered to constitute an apparatus in the sense of claim 1 and whether the cut-line forming and bend-breaking sections process at least two glass plates concurrently in the sense of claim 1.

2.4 The normal meaning of the term "apparatus" is that it forms a unitary machine. A collection of machines where the output of one machine becomes the input of another machine, as in D3, would not normally be considered to be an apparatus. This view is consistent with the description of D1, compared to which the patent in suit is meant to disclose an improvement. In D1 a distinction is made between a production line and an apparatus (cf. D1, column 1, lines 22 to 43 and column 1, line 65 to column 2, line 7). The Board agrees with the respondent that the production line of D3 cannot be considered to be an apparatus in the sense of claim 1.

2.5 With respect to whether there is an absence of sections for concurrently forming cut lines and for bend-breaking at least two glass plates in D3 the Board agrees with the respondent. The appellant interpreted claim 1 to include within its scope that each section individually did not have to simultaneously process at least two glass plates, but that one section could be processing a glass plate concurrently with a different section. The Board cannot agree with this interpretation of the claim. The claim clearly states that each of the sections is arranged to concurrently process at least two glass plates. This means that each of the specified sections treats the two plates simultaneously, either by the section being provided with two processing arrangements or one processing arrangement working simultaneously on two plates. Neither of these possibilities is disclosed in D3 so that this feature of claim 1 is not disclosed in this document.

2.6 Therefore, the subject-matter of claims 1 is novel in the sense of Article 54 EPC.

3. Inventive step

3.1 The closest prior art is represented by D3. From the reasons given above with respect to the novelty of claim 1 over the disclosure of D3 it is clear that claim 1 is distinguished by the features that:

a): it is an apparatus, and

b): each of the main cut-line forming section and glass plate bend-breaking section is arranged to concurrently process at least two glass plates.

3.2 With respect to feature a), D3 discloses a production line. However, in D1 a production line was replaced by an apparatus. The disadvantages of a production line are explained in D1 (cf. column 1, lines 22 to 43). It is clear therefore to the skilled person that a production line may be replaced by an apparatus in appropriate circumstances.

3.3 With respect to feature b), the problem to be solved is to increase the capacity of the apparatus in the case that one of the sections specified in the feature proves to be a bottleneck. Such a problem would become known to the skilled person since it would be immediately apparent that one or both of these sections is slowing down the process because the capacity of the machine would be limited by the capacity of that section.

The skilled person seeking to solve this problem would already know from D3 that the grinding process is known to be slow. The solution disclosed in D3 is to provide the grinding section with the means to process concurrently two glass plates (cf. box on page 93). It would therefore be obvious to the skilled person to apply this solution to the other processing sections as specified in claim 1. The respondent argued that the skilled person knows that the bottleneck is to be found at the grinding section since grinding takes longer than, for instance, cutting, so that the skilled person would have no reason to increase the capacity of the other processing sections. However, if the argument of the respondent is followed it would mean that the feature b) of claim 1 has no purpose. The Board cannot therefore accept this line of argumentation. The respondent suggested that the problem to be solved by feature b) is to provide an alternative. That however could only then be the problem if the feature of claim 1 and the corresponding feature in D3 had the same effect. This is not the case here since the feature of claim 1 has the effect of removing possible bottlenecks, which is not the case for the processing machines of D3.

3.4 Therefore, the subject-matter of claim 1 of the main request does not involve an inventive step in the sense of Article 56 EPC.

Auxiliary request

4. Article 123(2)(3) EPC

Claim 1 of the main request comprises the combination of claims 1 and 9 as granted with claim 9 having been dependent upon all preceding claims. The auxiliary request adds to claim 1 of the main request the feature that was in claim 4 as granted which was also dependent on all dependent claims. Therefore, claim 1 of the auxiliary request was already contained among the claim combinations of the patent as granted which was not opposed under Article 100(c) EPC. Also, with the exception of the addition of reference numerals and the words "characterised in that" the claims as granted are identical to the claims as originally filed. The Board therefore concludes that claim 1 of the auxiliary request complies with Article 123(2)(3) EPC.

5. Inventive step

5.1 Claim 1 of the auxiliary request contains the extra feature compared to claim 1 of the main request that the cut-line forming section is provided with two cutting heads and a common moving device.

5.2 In D3 the grinding section is already provided with two grinding heads on a common moving device in order to provide concurrent grinding of two glass plates. Considering how to provide concurrent processing in the cut-line forming section it would be obvious to the skilled person to apply the same solution in that case, i.e. to provide two cutting heads on a common moving device. There is no technical indication in D3 which would indicate that such a measure may not be possible for the cut-line forming section, so that the skilled person would not be led away from the solution.

5.3 Therefore, the subject-matter of claim 1 of the auxiliary request does not involve an inventive step in the sense of Article 56 EPC.