T 0107/22 (Earphone user's activity states/SAMSUNG) 09-07-2024

1. Technical background

1.1 The application concerns an earphone that can adjust its audio output based on a user's "activity level". It addresses the issue that a typical earphone does not adapt the audio output to the user's "state", such as sleeping, resting or exercising. This can lead, according to the application, to undesirable situations, like the user falling asleep with music playing at a high volume or not having the right music for a workout.

1.2 The solution proposed in the present application is to use an earphone with integrated sensors that can detect the user's movements and heart rate. This information is then used to determine the user's state and adjust the audio output accordingly. For example, the earphone could lower the volume of the audio being reproduced if the user is falling asleep or increase the tempo of the reproduced audio if the user starts exercising.

2. Main request: admittance

2.1 The main request was first filed only during the oral proceedings before the board and thus after notification of the board's communication under Article 15(1) RPBA (cf. point III above). Its admittance into the proceedings is therefore subject to the board's discretion (cf. Article 13(2) RPBA).

2.2 The appellant explained that the main request was filed only during the oral proceedings before the board because the board had raised, also during these oral proceedings, a "new objection" based on Article 123(2) EPC. This objection concerned the "previous main request" (now "auxiliary request 1") filed with the written reply to the board's communication. In its view, the board could have raised this objection earlier, given that the appellant had replied to the board's communication one month before the oral proceedings.

2.3 The appellant is reminded that, under Article 13(2) RPBA, amendments to a party's appeal case after notification of a communication under Article 15(1) RPBA are, in principle, not taken into account. The board is not obliged to assess such amendments before the oral proceedings and to send a second communication. Moreover, within the Boards of Appeal, it is not the customary practice to undertake such assessments and issue subsequent communications. However, when a new claim request is filed and admitted, a board should check ex officio its compliance with the EPC, and in particular with Articles 84 and 123(2) EPC. Therefore, the first opportunity for the present board to express its view on the allowability of the new claim request filed with the written reply to the board's communication was during the oral proceedings before it. Filing a claim request including a deficiency under Article 123(2) EPC, making it not allowable, does not justify the filing of further claim requests.

2.4 The appellant conceded during the oral proceedings before the board that the new main request had the same clarity issue as the previously assessed claim requests. It further submitted that its primary reason for filing the new main request during the oral proceedings was to avoid a decision explicitly indicating non-compliance with Article 123(2) EPC regarding auxiliary request 1.

2.5 The board concludes that the new main request lacks prima-facie allowability according to the statement of the appellant itself. For this reason alone, it is not to be admitted.

On a general note, the typical purpose of filing an amended set of claims is to limit the underlying patent or application to potentially allowable subject-matter and to address any real or potential objections raised against previously filed claim requests. Its purpose, however, cannot be to dictate what the board discusses in its final written decision.

2.6 In view of the above, the board cannot see any "exceptional circumstances" justifying the admittance of the main request into the proceedings.

2.7 As a result, the main request was not admitted into the appeal proceedings (Article 13(2) RPBA).

3. Auxiliary request 1: claim 1 - added subject-matter and clarity

3.1 In relation to auxiliary request 1, the amendment underlying feature (k) implies that the "controller" of the claimed "earphone" is adapted to adjust the "audio output" to any "activity" which could be performed by the user. The way in which the "audio output" is adjusted by the controller is also not restricted.

3.2 There is however no direct and unambiguous disclosure in the application as filed for such an unrestricted adjustment of the audio input (Article 123(2) EPC). Instead, in original claim 1, the "controller" is adapted to adjust the audio output to an activity performed by the user such that the audio output matches a user's "low or high activity state". The description as filed, moreover, provides a similar teaching as original claim 1. For instance, in the paragraph bridging pages 8 and 9 as filed, it is set out how the controller is "able to perform a matching between a user's detected pulse and a piece of music's beat per minute". The paragraph bridging pages 5 and 6 as filed illustrates this with some concrete examples of pieces of music to match certain physical activities of the user.

3.3 The appellant opined that there was no need to specify any match with the user's "low or high activity state", given that the "activity" as per feature (k) was already restricted by feature (h), where it is stated that the "state of the user comprises a user's physical state or activity".

The board is not convinced: even if one were to acknowledge that the "state of the user" as per feature (h) could not involve any "state" beyond that of a user's physical state or activity, there still would not be any restriction as to the way in which the "audio output" is adjusted by the controller in accordance with feature (k). In particular, the matching between the audio output and a low or high activity state on the part of the user which was prominently mentioned in the application as filed is not apparent from features (h) and (k). The board can therefore only conclude that feature (k) indeed adds subject-matter which extends beyond the content of the application as filed.

3.4 Moreover, as correctly set out in Reasons 1.2 of the appealed decision, the phrase "in order to avoid disturbances resulting from the [[deleted: minor]] relative motions" of feature (e) amounts to a "result to be achieved" rather than to a clear definition of the respective "first motion sensor" and the associated detection actions. The board concurs in particular that the claimed "result to be achieved" does not provide the skilled reader with instructions that are sufficiently clear to put this "result to be achieved" into practice. The appellant's argument that the skilled reader would not attribute any importance to this phrase amounts to mere speculation. It does not reflect how a skilled reader will normally read a claim. Moreover, its argument that the "first motion sensor" together with the expression "to filter" as mentioned in feature (e) provides the skilled reader with sufficient detail on how to proceed in this respect is a mere allegation, which could not persuade the board.

3.5 It is expedient to illustrate the difficulties which the skilled reader would have to face in that regard with a practical example. To do so, an "earphone" can be considered of which the housing comprises a part made from a soft and resilient material that is to be inserted in the ear canal while in use. The application as filed explicitly considers such a housing at page 15, lines 1 to 3 to ensure a "comfortable fit". Nonetheless, for such a housing, the material's inherent restoration force can evidently induce "relative motions" which can in fact be disturbing for the user. After all, these "relative motions" not only

sometimes cause a disturbing audible noise, which is not necessarily removable simply by filtering "sensor data from the pulse detection" as per feature (e) or as set out at page 9, lines 18 to 20 of the application as filed, but they can eventually lead to the earphone being expelled from the user's ear canal. The user may then find it annoying to have to put the earphone back into the ear canal. It would not be apparent for the skilled reader how to avoid this "disturbance", neither based on the application as filed nor based on their common general knowledge and how to clearly define the limitations of feature (e). This feature therefore indeed leads to a lack of clarity (Article 84 EPC).

3.6 In sum, auxiliary request 1 is not allowable under Articles 84 and 123(2) EPC.

4. Auxiliary request 2: claim 1 - clarity

4.1 The same objection under Article 84 EPC as raised in point 3.4 above applies regarding the phrase "in order to avoid disturbances resulting from the minor relative motions" (see point VII above) here.

4.2 Hence, auxiliary request 2 is not allowable under Article 84 EPC either.