T 2225/21 08-06-2022

1. The main request was filed for the first time with the statement of grounds of appeal. It contains 16 claims, wherein claim 1 is a combination of claims 1 and 13 as originally filed and claims 2 to 16 correspond to claims 2 to 12 and 14 to 17 as originally filed with numbering and dependencies adapted.

2. Consequently, the subject-matter of the main request does not go beyond the content of the application as originally filed (Article 123(2) EPC).

3. Claim 1 of the main request includes the features of claim 13 which were not included in claim 1 of the request underlying the contested decision. It appears from the examination proceedings (see point 1.3 of the communication from the Examining Division of 25 November 2020) that the Examining Division considered the subject-matter of claim 13 to be new over D1 but not involving an inventive step when considering common general knowledge of the skilled person. The reasons are however unspecified in the communication and the objection to claim 13 does not form part of the grounds for refusal.

4. The subject-matter of claim 1 of the main request is new over D1 already in view of the fact that the sensor arrangement (Figs. 13-19: 48, 58, 68, 78a and 78b) of D1 is located within the drive assembly for driving the support structure about first and second axes (Figs 14, 15: axes 5a and 6a; sensors 58 and 68) or at predetermined positions along a path of rotation about a third axis (Fig. 17: axis 7a; position switches 78a and 78b), and not in a first and second predetermined positions along a path of rotation of the support structure about first and second axes respectively, which define a first and second end positions of the support structure along the path of rotation about the first and second axes respectively.

In fact (see Fig. 12 and par. [0077]), in D1 there is a support chassis 8 that supports the display panel 3 and a base plate 51 with a slider 52 that moves linearly relative to the base plate. When the slider 52 moves, the support chassis 8 rotates on the first rotation axis 5a, and the display panel is tilted right or left. A position sensor 58 is provided to the base plate 51 for detecting a position of the slider 52, which position corresponds to an angle of the display surface about the first axis (see par. [0087]). The position sensor 58 is thus not along a path of the rotation about the first axis. The same applies to the position sensor 68 for the second axis 6a (see Fig. 15), as it is analogously connected to a slider 62 which position corresponds to an angle of the display surface about the second axis 6a (see par. [0099]), whereby rotation about axis 6a provides up or down tilting of the display panel.

The display panel can also be rotated about an axis 7a (see Fig. 17) by means of a rotation mechanism (see par. [0120] and [0121]) which includes two position switches 78a and 78b that detect the posture (portrait mode or landscape mode) of the display panel. These switches provide a sensor arrangement located along a path of rotation about the axis 7a.

There is however no other sensor arrangement located along another path of rotation as required by claim 1. Hence, already for this reason, the subject-matter of claim 1 is novel over D1.

5. It follows that the sole ground for refusing the current patent application (novelty) is remedied by the new main request. Moreover, the view of the Examining Division according to the obiter dictum of the decision regarding the inadmissible extension does no longer apply either. Accordingly, the appeal is allowable and consequently, the decision under appeal is to be set aside.

6. Under Article 109 EPC, if the department whose decision is contested considers the appeal to be admissible and well founded, it shall rectify its decision. It is established Case Law of the Boards of Appeal that, if the appeal is objectively to be considered as admissible and well founded, the first-instance department is obliged to grant interlocutory revision, without room for discretion (see e.g. T 1173/10, T 139/87, T 180/95, T 1060/13).

In the present case the Examining Division should have therefore carried out an interlocutory revision and resumed the examination proceedings because its sole ground for refusal did no longer apply. The fact that the Examining Division did not rectify the decision although it was obliged to do so constitutes a fundamental deficiency which according to Article 11 RPBA justifies a remittal of the case for further prosecution.

The fact that the Examining Division in its above mentioned communication raised an inventive step objection (D1 together with common general knowledge) for the subject-matter of claim 13 as originally filed is irrelevant, since this objection was fully unsubstantiated and anyway does not form part of the grounds for refusal, let alone part of the obiter dictum (see Case Law of the Boards of Appeal of the EPO, 9th Edition, V.A.2.9.2).

Under these circumstances and also considering the request of the appellant, the case is immediately to be remitted (Article 111(1) EPC).

7. The requested partial reimbursement of the appeal fee at 25% under Rule 103(4)(c) EPC is granted since the appellant withdrew the request for oral proceedings within one month of notification of the Board's communication in preparation for the oral proceedings and no oral proceedings have taken place.

A full reimbursement of the appeal fee under Rule 103(1)(a) EPC is nevertheless not justified because the above mentioned fundamental deficiency cannot have been causally linked with filing the appeal since it occurred thereafter (see e.g. T 1060/13, point 4.5; T 1994/11, point 4).