T 0555/06 22-11-2007

Reasons for the Decision

Refusal of a computer generated slideshow

1. The opponent pursued the matter of computer generated slideshow presentations in this case in part in order to obtain from the board an obiter for guidance of the departments of first instance. However, the only matter relevant to this case is whether the opposition division's refusal to allow the use of a computer generated slideshow presentation encroached on the opponent's rights in accordance with Article 113(1) EPC.

1.1 A computer generated slideshow presentation is, in principle, not distinguishable from other presentations using more conventional technology such as flip-charts or overhead projectors. In as far as the content would not differ there may be no need to distinguish between these various forms of presentation, particularly if the information presented is limited to visual aids to an oral presentation. However, in decision T 1110/03 (not published in OJ EPO) Board 3.5.02 expressed its concern that the more modern technology would permit the presentation of information at a higher rate than is possible by oral means, which could lead to a form of information overload. This would indeed appear to be a risk if a computer generated slideshow replaces an oral presentation. The practice mentioned in T 1110/03 (supra) of requiring that the content of the intended presentation be supplied in advance should enable the deciding body and other parties to examine the content and lodge any objections before the presentation begins. That practice places certain restrictions on the timing of a party's preparation for oral proceedings but has no influence on the content.

1.2 In the present case the opponent's representative informed the opposition division prior to the oral proceedings that the computer generated slideshow presentations would contain only information which was already in the file and therefore would act only as a visual aid. Nevertheless, the opponent failed to respect the opposition division's instruction to file a copy of the content in advance. In the light of the concerns raised in T 1110/03 (supra), the division's action in refusing the presentation is both entirely understandable and reasonable. The division's action evidently placed some restriction on the manner in which the opponent's representative was able to present his case orally. However, it cannot have influenced the content of the information to be presented if the refused presentation would indeed have been limited to the existing content of the file. Moreover, in view of the failure to comply with the opposition division's instruction to file a copy of the content in advance the opponent's representative cannot have been taken by surprise by the division's action during the oral proceedings. It follows that there was no infringement of the opponent's right to be heard.

1.3 Since there was no infringement of the opponent's right to be heard there was also no substantial procedural violation and the opponent's request for remittal of the case is without foundation.

2. As set out above, the board finds that the opposition division's action in this case was neither inappropriate nor legally flawed. The action to be taken in any particular case depends on the circumstances of the case and the examining and opposition divisions must retain the discretion to act accordingly. It would not be appropriate for the board to attempt to restrict the exercise of that discretion.

Inventive step

3. The present patent relates to high lift aerofoils at the leading and trailing edges of aircraft wings, which may be extended to create increased lift during take-off and landing. Such auxiliary aerofoils at the leading edge are termed "slats" whilst those at the trailing edge are termed "flaps". The present patent is applicable to both slats and flaps and in the remainder of this decision the latter term will be used to designate both. There is a risk that a flap which is mounted on two mutually spaced tracks may become skewed, when one end of the flap moves a greater distance than the other. The subject-matter of claim 1 provides sensors which detect such a skewed condition.

4. The board is in agreement with both parties that the closest state of the art for consideration of inventive step is known from D2. This discloses an aircraft provided with two skew detection arrangements, for flaps inboard and outboard of the engines respectively. The closest state of the art is the arrangement in respect of the inboard flaps. Each inboard flap is mounted by two mutually spaced flap carriages for translational motion on two corresponding tracks, each carriage being driven by a rack and pinion actuating mechanism. Sensors mounted on the frame of the wing co-operate with corresponding series of proximity targets mounted on the flap carriages. The output from the sensors is fed to a comparator to detect any difference between the sensed positions of the two carriages of any one flap.

4.1 The subject-matter of claim 1 differs from the closest state of the art according to D2 by the following features:

- two links associated with each flap and two crank assemblies for each flap;

- each crank assembly has a housing and a crank, the crank being attached to a respective one of the links, the crank assemblies and links converting translational motion of the flaps into rotary motion;

- two rotary position sensors for each flap for detecting rotary motion of the crank assemblies and links, each sensor being attached to a respective housing of one of the crank assemblies;

- wherein each crank assembly responds to motion of the corresponding link and transmits a rotary response to the rotary sensor to detect skew or loss of the flaps.

These features provide an alternative sensor arrangement.

4.2 D1 relates to a system for controlling the flaps of an aircraft which are subject to the blast of an engine and therefore are particularly effective at providing additional lift. However, as a consequence, failure of one engine leads to an imbalance between the lift provided by the wings. The object of the system of D1 is twofold, firstly to automatically introduce dissymetrical corrections of lift in order to re-balance the aircraft and secondly to provide protection against failure of the system itself. The flaps are mounted on pivoting carriages and a single actuator operates each flap. In one embodiment the innermost flaps on each side of the fuselage are connected by a torque tube arrangement which senses any difference of extension between the two flaps and, in the event of the difference exceeding a predetermined value, activates a safety system to prevent further differential extension. An alternative embodiment is briefly described and shown in figure 6, which differs only by the provision of two position sensors together with a comparator in place of the sensor arrangement associated with the torque tube.

4.2.1 In the alternative embodiment the representation of the link between the sensors is evidently schematic since the lines connect to the trailing edges of the flaps. According to the associated description "two position sensors … are respectively associated with flaps … and furnish their measurements to a threshold comparator". The parties disagree as regards the teaching of this embodiment to the skilled person. The embodiment is acknowledged in the patent specification as disclosing "links associated with the [flaps], crank assemblies having a housing and a crank, the crank being attached to a respective one of the links, and rotary position sensors for detecting rotary motion of the crank assemblies and links". Although the patent proprietor now resiles from this acknowledgement, in the board's view it is the only reasonable interpretation of the disclosure.

4.2.2 The operation of each flap according to D1 by single actuators means that the problem of skewing due to failure of one actuator cannot occur. There is no disclosure of any rigid torque connection between the pivoting carriages of each flap and it may be, therefore, that skewing of the flap could occur if the carriages were subject to unequal resistance to pivoting motion. However, there is no disclosure to this effect and since the embodiment according to figure 6 discloses only a single sensor for each flap, that arrangement would be unable to sense any such skewing. It follows that D1 has no teaching in respect of a sensor arrangement which is suited to the purpose carried out in the closest state of the art and the skilled person wishing to find an alternative to the sensor arrangement of D2 would have no reason to consider the disclosure of D1. The opponent refers to a statement in D1 regarding the second object of providing protection against failure of the system itself arguing that the skilled person seeking an alternative to the D2 system would be encouraged by this to consider the teaching in detail. This second object does relate to differential movement of the two flaps resulting from failure of an actuator or blockage of one flap but in the absence of retrospective considerations is not relevant to the skewing of a single flap.

4.2.3 Moreover, the sensors according to D1 are provided together with flap carriages which undergo pivotal motion whereas the flap carriages according to D2 undergo translational movement. The pivotal arrangement permits a sensor to be attached at a point along the length of the pivotal arm in accordance with the range of movement of the rotary sensor. This possibility does not exist with the translational movement of the flaps according to D2 so that the rotary sensor of the second embodiment of D1, which anyway is disclosed highly schematically, is not obviously suited for use with the D2 flap arrangement.

4.3 For the above reasons the board finds that the subject-matter of claim 1 is not rendered obvious by a combination of D2 and D1.

Evidence D3a

5. D3a was filed together with the grounds for appeal. The opponent argues that it was filed at that point in the procedure because it had been surprised by the interpretation by the opposition division of D1 (cf. 3.2.1). As a result, it argues, D3a was filed in response to a change in the subject of the proceedings.

5.1 The opponent has not given any reason for failing to find D3a during the period for opposition but merely states that it was prompted by the opposition division's interpretation of D1 to conduct a further search as a result of which it became aware of D3a. Under these circumstances, however, it is evident that if the opponent had conducted a sufficiently thorough search before filing the opposition it would have been able to file D3a within the time limit according to Article 99(1) EPC. The board therefore considers D3a to be late-filed within the meaning of Article 114(2) EPC.

5.2 According to consistent case law the question of whether late-filed evidence is to be disregarded is dependent inter alia on its relevance in comparison with evidence which is already in the procedure. D3a discloses no more information relevant to this case than does D1 as interpreted by the board. As a result, consideration of D3a would not influence the above finding in respect of inventive step. The board therefore exercises its discretion in accordance with Article 114(2) EPC and disregards D3a.