T 0340/01 01-04-2003

Reasons for the Decision

1. Main request

1.1. Ground of opposition according to Article 100(c) EPC

The ground of opposition according to Article 100(c) EPC was raised for the first time within the appeal proceedings with letter of 12 March 2002. The respondent does not consent to this ground of opposition being dealt with. Consequently this ground of appeal is not subject of the appeal proceedings (see decision G 10/91).

1.2. Novelty

Claim 1 defines that within a method for building thread on a rotating package by traversing the point of application of the thread axially relatively to the package, the relationship between package rotation and traversing rate is controlled and that this control is by a feedback arrangement controlling package rotation.

Concerning the nature of the relationship defined in claim 1 the Board follows the opinion of the respondent according to which the term "traversing rate" can either be considered as referring to an average value or to an instantaneous one having the consequence, that in the first case the relationship is dimensionless, while in the latter case it has the dimension of speed, since the method of claim 1 is applicable in either case.

Concerning the manner or the criteria under which this relationship is controlled, the Board likewise follows the opinion of the respondent, that beyond the definition given within this claim, no further condition concerning control of this relationship needs to be considered. The reason being that, as indicated above, within claim 1 it is defined that a relationship, likewise defined in this claim, is controlled and that furthermore it is indicated in which manner the control is performed, namely by a feedback arrangement controlling package rotation.

Novelty of claim 1 thus can be assessed considering the features defined in this claim, without a further definition with respect to the nature and the control of the relationship having to be considered.

According to the respondent document D1 should be disregarded since some of the equations given in this document are erroneous, thus preventing the person skilled in the art from considering this document.

The Board cannot follow this reasoning since the equations given in document D1 set the variables employed in relation, on the basis of mathematical principles (cf. D1, column 6, lines 36 to 50). Thus for the person skilled in the art the errors in some of the equations are evident and, using generally known mathematical principles, likewise the correct equations are evident. The same conclusion can be drawn considering the statement of Mr P. Bowler, filed by the respondent with letter of 28 February 2003. In this statement, with respect to the patent in suit, it is indicated that the required relations between traverse rate, yarn speed, tension and package diameter can be calculated using well known mathematical relationships (cf. paragraph 4). Considering that the person skilled in the art has the same skills with respect to document D1 it is evident that the erroneous equations could not have led to this document being misunderstood or even disregarded.

It remains undisputed that if this document is considered, document D1 discloses the method according to the first part of claim 1. This can be derived e.g. from Figure 2.

According to the respondent the method according to claim 1 differs in two aspects from the method according to claim 1.

At first, according to claim 1 the relationship between package rotation and traversing rate is controlled. Consequently the two entities leading to the relationship, namely the package rotation and the traversing rate, need to be linked. The Board cannot follow the argument of the respondent that for the method according to document D1 such a linkage is not provided. One reason being that, as indicated above, the person skilled in the art considers document D1 in context with correct governing equations and not ones - as alleged by the respondent - which comprise errors. More importantly it is evident from Figure 2 that the two portions of the control, one concerning package rotation via a friction roller (elements 37, 32, 33, 29, 28, 10, 11) and the other one concerning the traversing rate (elements 38, 34, 35, 39, 40, 31, 30, 16, 17), are closely linked in that the predetermined value for the traversing rate enters the control of the package rotation. This is also evident considering equation (9) (column 7, line 31) from which it can be derived that traversing rate and package rotation are related.

Secondly, the method of claim 1 differs from the one according to document D1 with respect to the feedback arrangement, which, according to claim 1 controls package rotation while the one according to document D1 controls a friction roller. Thus the package rotation is not controlled directly which can lead to inaccuracies resulting from possible slippage between the friction roller and the package to be driven.

This argument cannot be considered in the examination of novelty since the last feature of claim 1 does not define that package rotation is controlled directly. This holds true the more as according to the embodiment shown in Figure 4 of the patent in suit (cf. column 4, lines 29 to 33) the package is also rotated via a friction roller. Since within claim 1 it is not defined that package rotation is without slippage, the question of whether slippage can affect the control in case of the package being driven by a friction roller has to be disregarded in the assessment of novelty.

Consequently the method according to claim 1 is not distinguished from the one according to document D1 and thus lacks novelty in the sense of Article 54 EPC.

Therefore, the main request of the appellant is not allowable.

2. First auxiliary request

2.1. Amendments

Claim 1 according to the first auxiliary request differs from claim 1 as granted in that the last feature of this claim, according to which a feedback arrangement controlling package rotation is provided is modified, defining that this feedback arrangement controls package rotation in accordance with the instantaneous position of the point of application.

Contrary to the opinion of the respondent claim 1 according to the first auxiliary request is not the result of a mere combination of claims 1 and 2 as granted. If this were the case it would be the relationship between package rotation and traversing rate which is controlled in accordance with the instantaneous position of the point of application and not the package rotation as it is the case according to claim 1.

With respect to the disclosure of the feature according to which a feedback arrangement controls package rotation in accordance with the instantaneous position of the point of application, the respondent has in particular referred to the portions of the description of page 5, first paragraph, page 6, first paragraph, page 7, paragraph 2 and page 8, first paragraph, indicating that the description and its various portions need to be seen in their proper context. Considering the various portions of the description, of which the one of page 5, first paragraph indicates that, as defined in claim 2 as granted the relationship between package rotation and traversing rate is controlled in accordance with the instantaneous position of the point of application as such, and also in context with the remainder of the description, the Board cannot find the feature added to claim 1, according to which the feedback arrangement controlling package rotation acts in accordance with the instantaneous position of the point of application, within the content of the application as filed. Consequently, since the application as filed does not directly and unambiguously disclose the feature added to claim 1, this claim does not satisfy the requirement of Article 123(2) EPC.

Therefore, the first auxiliary request of the appellant is not allowable.

3. Second auxiliary request

3.1. Amendments

Claim 1 according to the second auxiliary request comprises the combination of features of claims 1, 2 and 11 as granted. Accordingly the feature of claim 1 as granted concerning the relationship between package rotation and traversing rate being controlled is supplemented by defining that this control is in accordance with the instantaneous position of the point of application and the feature relating to a feedback arrangement controlling package rotation is supplemented such that the feedback arrangement controls package rotation and traverse rate.

Since these amendments of claim 1 according to the second auxiliary request result from the combination of claims 1, 2 and 11 as granted, these amendments are not subject to examination with respect to Article 123(2) EPC.

According to further amendments this claim also comprises the features of claims 16 and 20 as granted. Although these claims relate to an apparatus, introduction of their features into claim 1 are admissible since within claim 1 these features define, in the same manner as is the case for the apparatus claims, the structure of the feedback arrangement. Besides these features are also disclosed in the application as filed (cf. page 8, last paragraph).

3.2. Novelty

According to the appellant the method according to claim 1 lacks novelty with respect to document D1. The reason being that according to this document the feedback arrangement likewise controls the package rotation and the traversing rate and that consequently the relationship between package rotation and traversing rate is controlled at any time, which thus includes that the control is in accordance with the instantaneous position of the point of application.

Although the Board can follow this opinion with respect to a feedback arrangement controlling package rotation and traverse rate being used in the method according to document D1, the conclusion, that such a feedback arrangement results in the relationship between package rotation and traverse rate being controlled in accordance with the instantaneous position of the point of application, cannot be followed. It is out of the question that within the known method the control of package rotation and traverse rate effects the relationship at any time and thus also at any instantaneous position of the point of application. Such effects however come automatically, whereas on the contrary a control performed in accordance with the instantaneous position of the point of application requires that the instantaneous position is sensed and considered in controlling the relationship.

It is evident that the method according to document D1 does not take account of the instantaneous position of the point of application, in controlling the relationship between package rotation and traversing rate (cf. e.g. Figure 2). Thus claim 1 is novel in the sense of Article 54 EPC.

3.3. Inventive step

The method according to claim 1 differs from the one according to document D1 in that the relationship between package rotation and traversing rate is controlled in accordance with the instantaneous position of the point of application.

This leads to the effect that, as can be derived from Figures 2 and 3 of the patent in suit, the traverse rate, as the velocity of the traversing point, can be controlled within the traverse stroke (cf. column 5, lines 35 to 52).

In view of the method according to document D1 the problem to be solved by the subject-matter of claim 1 can be seen in the provision of an improved control, according to which the traverse rate can be controlled within each traverse stroke.

This problem is solved by the method according to claim 1 in that the relationship between package rotation and traversing rate is controlled in accordance with the instantaneous position of the said point of application by a feedback arrangement controlling package rotation and traverse rate.

Within the method according to document D1 the instantaneous point of application is not accounted for and consequently this document fails to give an indication towards the solution according to claim 1.

Document D6 discloses an apparatus for building thread on a package, which is coneshaped and driven by a friction roller. According to this document thread building on coneshaped packages poses problems in case of thread being fed with uniform velocity. To alleviate these problems according to document D6 it is known to drive the coneshaped package by means of a friction roller, which is in the form of a friction roller segment and coupled to the point of application of the thread (page 1, paragraph 2). To avoid a disadvantage of this approach, namely that the coneshaped package is only driven and supported in a narrowly defined area corresponding to the width of the friction roller segment, document D6 proposes provision of a rotating element, by means of which the package is supported and driven. In its longitudinal direction the rotating element is divided into a number of segments, which, depending on the position of the friction roller segment and thus also of the point of application coupled thereto, are driven by the friction roller segment (page 2, paragraphs 2, 3; page 3, lines 1, 2; Figures 1, 2). This driving mechanism for coneshaped packages leads to the package rotation being dependent on the position of the point of application, since the friction roller segment is coupled with the point of application.

The known thread building apparatus however neither results in controlling the relationship between package rotation and traversing rate in accordance with the instantaneous position of the point of application, nor suggests such control. The reason being that the coneshaped package is driven by a friction roller segment movable with the point of application in a predetermined manner, within which the instantaneous position of application is not sensed, and thus cannot affect the manner in which the relationship between package rotation and traversing rate is controlled. This holds true all the more because the only elements of the known friction drive which reflect the position of the point of application are the segments of the friction roller and of the rotating element. By means of these segments however, due to their extensions in longitudinal direction, the instantaneous position of the point of application cannot be taken into account.

Consequently, since neither one of documents D1 and D6 leads to the solution according to claim 1, the method according to this claim involves an inventive step (Article 56 EPC). This applies correspondingly with respect to claim 10 according to the second auxiliary request, which defines an apparatus for building thread and corresponds, as far as structural features are concerned, to claim 1.