T 2583/18 22-03-2023

Reasons for the Decision

1. The appeal is admissible.

Non-attendance of the appellant at the oral proceedings before the board

2. The duly summoned appellant did not attend the oral proceedings. However, under Rule 115(2) EPC, the proceedings could continue without that party. In accordance with Article 15(3) RPBA 2020, which is applicable in accordance with Article 25(1) RPBA 2020, the board relied on the appellant's written submissions for its decision. The board was in a position to announce a decision at the conclusion of the oral proceedings since the case was ready for decision (Article 15(5) and (6) RPBA 2020, which applies in accordance with Article 25(1) RPBA 2020) and the appellant's voluntary absence was not a reason for delaying the decision (Article 15(3) RPBA 2020).

Sole request - admittance under Article 12(4) RPBA 2007

3. In the case in hand, the statement of grounds of appeal was filed before the date on which the revised version of the Rules of Procedure of the Boards of Appeal (RPBA 2020) entered into force, i.e. 1 January 2020 (see OJ EPO 2019, A63). Thus, in accordance with Article 25(2) RPBA 2020, Article 12(4) to (6) RPBA 2020 does not apply to the question of whether to admit the sole request. Instead, Article 12(4) of the RPBA in the 2007 version (RPBA 2007 - see OJ EPO 2007, 536) continues to apply.

4. Under Article 12(4) RPBA 2007, the board has the discretionary power to hold inadmissible facts, evidence or requests which could have been presented or were not admitted in the first-instance proceedings. Since, in fact, almost every claim request could have been presented before the department of first instance, the question within that context is whether the situation was such that the filing of this request should already have taken place at that stage (see Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, "Case Law", V.A.5.11.1 and V.A.5.11.4(a)). The board exercises its discretion under Article 12(4) RPBA 2007 having regard to the particular circumstances of the individual case (see e.g. decision T 1178/08, point 2.3 of the Reasons). However, as was held in G 10/93 (OJ EPO 1995, 172, point 4 of the Reasons), "[p]roceedings before the boards of appeal in ex-parte cases are primarily concerned with examining the contested decision". Appeal proceedings are not a continuation of examination at first instance or a second, parallel procedure for the substantive examination otherwise to be carried out by the examining division which applicants could freely opt to launch depending on the circumstances (see Case Law, V.A.5.11.4(a), in particular the cited decisions T 1108/10 and T 1212/08).

5. According to the appellant, the claims of the sole request are "based on the claims submitted on 22.05.2014, which claims have been searched and examined by the Examining Division" (see statement of grounds of appeal, page 1). The board construes this statement to mean that the appellant was asserting that the claims of the current sole request were based on claims 1 to 7 of the sole request filed by letter of 22 May 2014.

6. However, the board notes that the claims of the current sole request differ extensively from the claims of the sole request filed by letter of 22 May 2014 as follows:

(a) Claims 1, 2 and 3 have been combined into new claim 1.

(b) Claims 3, 4 and 5 have been combined into new claim 3.

(c) Claims 8 to 13 have been deleted.

(d) The following features, which were not in any of claims 1 to 7 of 22 May 2014, have been introduced into claims 1 and 3:

"wherein the at least two pixel rows (L1, L2) include a first pixel row (L1) with a first predetermined waiting time (T2-1) and a second pixel row (L2) with a second predetermined waiting time (T2-2) and the corresponding control process is as follows:

the control chip simultaneously send [sic] a high-level pulse to turn on the reset transistors (R) and the charge overflow gate transistors (T) of all pixel units in the first pixel row (L1) and second pixel row (L2), and the exposure will be started after the reset transistors (R) and the charge overflow gate transistors (T) are turned off;

at the end of the exposure time (T1), the control chip simultaneously sent a high-level pulse to turn on the charge overflow gate transistors (T) of all pixel units in the first pixel row (L1) and second pixel row (L2); charges in the photocells (B) are transferred to the source followers (FD), and then the charge overflow gate transistors (T) are turned off;

the control chip sends, respectively at the end of the first predetermined waiting time (T2-1) and at the end of the second predetermined waiting time (T2-2) after the completion of the exposure time (T1), a control signal to output the data of the first pixel row (L1) and second pixel row (L2); wherein

at the end of the first predetermined waiting time (T2-1) of the first pixel row (L1) after the completion of the exposure time (T1), the control chip respectively sends out a high-level pulse to turn on the row strobe transistors (X) of all pixel units in the first pixel row (L1) and to turn on the first signal outputting transistor (SH1) of the pixel column containing the pixel units, to sample the signal level; subsequently, the row strobe transistors (X) of all pixel units in the first pixel row (L1) and the first signal outputting transistor (SH1) of the pixel column containing the pixel units are turned off, subsequently, the control chip sends out a high-level pulse to turn on the reset transistors (R) of all pixel units in the first pixel row (L1) to empty the charges in the source followers (FD), subsequently, the reset transistors (R) are turned off, subsequently, the control chip respectively sends out a high-level pulse to turn on the row strobe transistors (X) of all pixel units in the first pixel row (L1) and to turn on the second signal outputting transistor (SH2) of the pixel column containing the pixel units, to sample the reference level, and the digital signal is obtained from the comparison between the first and second signal outputting transistors (SH1) and (SH2) respectively corresponding to all pixel units in the first pixel row (L1) as the data output of the first pixel row (L1);

wherein at the end of the predetermined waiting time (T2-2) of the second pixel row (L2) after the completion of the exposure time (T1), the control chip respectively sends out a high-level pulse to turn on the row strobe transistors (X) of all pixel units in the first pixel row (L1) and to turn on the first signal outputting transistor (SH1) of the pixel column containing the pixel units, to sample the signal level, the row strobe transistors (X) of all pixel units in the second pixel row (L2) and the first signal outputting transistor (SH1) of the pixel column containing the pixel units are turned off, subsequently, the control chip sends out a high-level pulse to turn on the reset transistors (R) of all pixel units in the second pixel row (L2), to empty the charges in the source followers (FD), subsequently, the reset transistors (R) are turned off. Subsequently, the control chip respectively send [sic] out a high-level pulse to turn on the row strobe transistors (X) of all pixel units in the second pixel row (L2) and to turn on the second signal outputting transistor (SH2) of the pixel column containing the pixel units, to sample the reference level, the digital signal is obtained from the comparison between the first and second signal outputting transistors (SH1) and (SH2) respectively corresponding to all pixel units in the second pixel row (L2) as the data output of the second pixel row (L2)."

7. According to the appellant, the above additional features were taken from paragraphs [0079] to [0085] of the description of the application as filed (see statement of grounds of appeal, page 3).

8. During the proceedings before the examining division, the applicant had several opportunities to file the claims of the current sole request, namely in response to the communication pursuant to Article 94(3) EPC dated 11 December 2015, in response to the communication pursuant to Article 94(3) EPC dated 15 September 2017 and during the oral proceedings, which the applicant chose not to attend.

9. If the board were to admit the current sole request into the appeal proceedings, it would have to examine and decide on the extensively amended claims of this request for the first time on appeal (see additional features under point 6(d) above), or remit the case to the department of first instance for further prosecution. Neither procedural option is appropriate. These two inappropriate options would never have arisen if the amended claims in question had been presented in the proceedings before the examining division. The appellant should have allowed the examining division to exhaustively assess and then decide on all subject-matter for which the appellant intended to seek protection, even if only on a subsidiary basis, if it wished the board to decide on it. This approach is also in line with established case law (see Case Law, V.A.5.11.4(a)).

10. For the above reasons, the board exercises its discretionary power under Article 12(4) RPBA 2007 to hold the appellant's sole request inadmissible.