T 0112/13 25-11-2015

1. Admissibility of the line of argument starting from D4 and applying the teaching of D2 in respect of inventive step, as presented during the oral proceedings - Article 13(1) and (3) RPBA

1.1 In the sixth and seventh paragraphs of page 6 of its statement setting out the grounds of appeal the appellant, in support of its objection as to lack of inventive step, presented a (short) line of argument starting from D4 and applying the teaching of D2.

1.2 The respondent commented on this line of argument in its reply to the statement of grounds of appeal, see page 4, last paragraph, to page 5, second paragraph.

1.3 Furthermore, the board in point 4.2.4 of its communication pursuant to Article 15(1) RPBA gave a provisional opinion on the inventive step of claim 1, starting from D4 and applying the teaching of D2.

1.4 During the oral proceedings the appellant submitted a detailed and expanded line of argument starting from D4 and applying the teaching of D2.

1.5 Said submissions have been contested by the respondent as being inadmissible under Article 13(1) RPBA, since they were presented only during the oral proceedings.

1.6 In the view of the board these submissions do not alter the legal and factual framework of the proceedings, given that said detailed and expanded line of argument is essentially based on the combination of documents D4 and D2, as is the line of argument which was already presented in the statement setting out the grounds of appeal, see point 1.1 above, and does not include any freshly filed evidence. Thus, by submitting the detailed and expanded line of argument at the oral proceedings the appellant did not substantially amend its case as set out in its statement setting out the grounds of appeal.

1.7 For the above-mentioned reasons, the Board decided under its discretionary power (Article 13(1) RPBA) to admit into the proceedings the appellant's detailed and expanded line of argument presented during the oral proceedings. The board further saw no reason to apply Article 13(3) RPBA.

2. Claim 1 according to the main request - inventive step, Articles 52(1) and 56 EPC

2.1 The board follows the appellant's argument that the anchoring portion 25 in the opening device disclosed in D4 consists of the lower part of the two concentric tubes 26, 27. It therefore also agrees that the opening device for a sealed package according to claim 1 differs from the one known from D4 in that its anchoring portion is connected integrally to the frame by means of breakable connecting means and in that, in use, the cap rotating integrally with the anchoring portion breaks off the connecting bridges.

2.2 The board follows further the appellant's argument that the above-mentioned differentiating features have the effect of improving the precision with which the anchoring portion is fixed to the removable portion and hence the precision with which the removable portion is detached from the package.

2.3 Accordingly, the problem to be solved can be seen in the improvement of the precision with which the removable portion is detached from the package.

2.4 The board again follows the appellant's argument that the person skilled in the art seeking to solve this problem would take the teaching of D2 into consideration.

2.5 The question at stake is therefore whether the person skilled in the art starting from the opening device known from D4 and applying to it the teaching of D2 in respect of the embodiment depicted in figure 8 of said last document would arrive at the subject-matter of claim 1 and would do so without the exercise of inventive activity.

2.6 In line with the established case law of the boards of appeal, when investigating inventive step it should be borne in mind that the technical disclosure in a prior-art document should be considered in its entirety, as would be done by a person skilled in the art, and that it is not justified to arbitrarily isolate parts of such a document from their context in order to derive from them technical information which would be distinct from the integral teaching of the document, see Case Law of the Boards of Appeal, 7th edition 2013, I.D.9.4.

2.7 According to the teaching of the part of D2 referring to the opening device depicted in figure 8, the anchoring portion in the form of an inner ring 60 is on the one hand integrally connected to the frame in the form of the pour spout 4 via the frangible bridges 72 and on the other hand is non-integrally connected to the cap 12 via the curved links 62, the outer ring 64, the retaining mechanism 23 and the ratchet teeth 71, see page 12, line 11, to page 13, line 8.

2.8 This means that if the skilled person seeking to solve the problem mentioned in point 2.3 above were to take into consideration the teaching of D2 concerning the opening device depicted in figure 8, he would not single out the connection between the anchoring portion and the frame but would also incorporate into the envisaged solution the remaining elements of said opening device, namely the curved links, the outer ring, the retaining mechanism and the ratchet teeth.

This is because said remaining elements are indispensable for the functioning of the inner ring 60 disclosed therein.

2.9 This would result in replacing the mechanism of the opening device known from D4 with the mechanism of the opening device depicted in figure 8 of D2. In such a case there would again be no integral rotation between the cap and the anchoring portion, and thus the combination of the teachings of D4 and D2 would not lead the person skilled in the art to the subject-matter of claim 1 of the main request.

2.10 The appellant argues that the skilled person seeking to solve the problem mentioned in point 2.3 above would specifically single out from the opening device depicted in figure 8 of D2 the information that the anchoring portion is in the form of a ring and that the latter is connected to the frame via breakable bridges, ignoring at the same time any information concerning the other structural elements intended to provide a specific, non-integral connection between the anchoring ring and the cap.

The skilled person would then, according to the appellant, keep the integral connection between the upper parts of the two concentric cylinders 26, 27 of D4 as it is, would further replace the lower part of said cylinders with an anchoring ring 60 according to D2, and would finally incorporate form-fitting connecting means between such an anchoring ring and the upper parts of said cylinders.

By doing so the person skilled in the art would arrive at the subject-matter of claim 1 without exercising any inventive activity.

2.11 The board cannot follow the appellant's above-mentioned arguments for the following reasons:

2.12 There is no general teaching derivable from D2 in the sense that in any kind of opening device for a sealed package, and thus also in an opening device according to D4, the anchoring portion is to be connected integrally to the frame and that at the same time the anchoring portion is to be non-integrally connected to the cap, so that it can rotate (with play) together with the cap.

Only the specific teaching as mentioned in point 2.7 above is derivable from D2.

Furthermore, no teaching is derivable from D2 for incorporating the anchoring portion in the form of the anchoring ring 60 known from D2 into the opening device known from D4, for a specific modification of existing parts (concentric cylinders) of said device and for the incorporation of additional parts (form-fitting connecting means) into said device, as argued by the appellant.

In the present case, the above-mentioned line of argument concerning the different activities which apparently the person skilled in the art would have to carry out in order to arrive at the subject-matter of claim 1 is regarded as artificial and unrealistic and, therefore, is not accepted by the board. In fact, the board is convinced that there are so many technical obstacles connected with the implementation of said activities that the skilled person would refrain from doing so, especially in the absence of any recognisable pointer in this respect in D4 or D2.

2.13 For the above-mentioned reasons the subject-matter of claim 1 involves an inventive step according to Articles 52 and 56 EPC.

3. Claim 6 according to the main request - inventive step, Articles 52(1) and 56 EPC

The board's finding under point 2 above in respect of claim 1 according to the main request applies mutatis mutandis to claim 6 according to the main request.