T 0980/14 11-01-2019

Reasons for the Decision

1. The appeal is admissible.

2. Although having been duly summoned in a communication dated 12 October 2018, the respondent was not present at the oral proceedings, as announced by letter dated 3 December 2018. In accordance with Rule 115(2) EPC and Article 15(3) RPBA, the proceedings were continued without the respondent, who is treated as relying only on its written case.

3. The invention

The invention relates to an injection device for automatic injection of medicament. A specific embodiment is shown in exploded view in figure 2a and in sectional view in figure 3, reproduced below.

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The injection device comprises a housing (112) within which a syringe (114) with a discharge nozzle (118) is received. In use, the syringe is extended in a position in which the discharge nozzle extends from the housing, and its contents are discharged automatically. According to the specific embodiment disclosed in the description and drawings, the syringe is automatically retracted within the housing after the injection. The subject-matter of claim 1 of the patent as granted, however, is not limited in this respect. In claim 1 according to the first auxiliary request, a return spring (126) is defined, which biases the syringe from the extended position to a retracted position in which the discharge nozzle is contained within the housing.

Claim 1 of the patent as granted characterises the invention by a locking mechanism which, when locked, prevents the extension of the syringe. According to the patent, the locking mechanism is for preventing unwanted movement of the syringe when, for preparing the injection, an axial force is applied to the syringe by removing a needle protecting cap (111) (paragraph [0004] of the patent). Such a movement could damage the syringe, the needle or other components of the injection device.

4. Main request - novelty

4.1 The respondent argued that the subject-matter of claim 1 of the patent as granted lacked novelty over D4.

D4 discloses an automatic injector comprising a syringe and a shroud, the shroud being extendable in order to cover a needle of the syringe at the end of the injection. Figures 1, 2(b), 2(c) and 12, reproduced below, show the main components of the automatic injector. Figure 12 depicts an embodiment which differs in the configuration of mounting element 460 and rails 466.

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More specifically, D4 discloses an injection device (100 in the figures) comprising a housing (200) adapted to receive a syringe (300) having a discharge nozzle (needle 600), the syringe being movable in the housing along a longitudinal axis (paragraph [0054], first two sentences) from a retracted position (shown in figure 2(b)) in which the discharge nozzle is contained within the housing and an extended position (shown in figure 2(c)) in which the discharge nozzle of the syringe extends from the housing though an exit aperture; an actuator (spring 480); a drive (platform 450) adapted to be acted upon by the actuator and in turn act upon the syringe (by means of the connection with piston 400 of the syringe) to advance it from its retracted position to its extended position and discharge its contents through the discharge nozzle (paragraph [0054], last sentence); a syringe carrier (mounting element 466 with rails 460 described in paragraph [0056]) adapted to support the syringe as it is advanced (paragraph [0058]); and a locking mechanism (made up by hook-like ends 462 of rails 460 engaged - paragraph [0056] - with respective apertures in platform 450 as best shown in figure 12) between the syringe carrier and the drive to inhibit movement of the syringe carrier and syringe towards the exit aperture.

4.2 The appellant argued that hook-like ends 462 and the apertures in platform 450 were not disclosed as building a locking mechanism preventing relative movement of the platform with respect to the rails.

The Board notes that the claim does not require that the relative movement be prevented but merely inhibited.

Hook-like ends 462 and the apertures in platform 450 are shown in sufficient detail in the figures. Additionally, they are described as being engaged with one another (paragraph [0056]). It follows that the description and the figures together provide the skilled person with a direct and unambiguous disclosure that hook-like ends 462 and the apertures in platform 450 are able to transfer some axial force from the syringe, through mounting element 466 and rails 460, to platform 450 which is held in place by the engagement between proximal end 410 of plunger 400 and element 510 of actuator 500 (paragraph [0061] and figure 1). This force, which would have to be overcome to permit the relative movement of the platform with respect to the rails, clearly inhibits the movement within the meaning of the claim.

Whether a guiding function is also provided is of no relevance in this respect. The appellant's reference to decisions T 896/92, T 169/83 and T 241/88 is of no relevance either since these decisions concern the disclosure content of figures alone.

4.3 The appellant further argued that mounting element 466 and rails 460 were not adapted to support the syringe as it was advanced but instead were themselves supported by the syringe.

The Board notes that rails 460 of mounting element 466 are disclosed as being able "to guide the platform 450 as the plunger 400 travels in a distal direction" (paragraph [0050], fifth sentence). This guiding function, which is transferred to the syringe connected to platform 450, provides a certain constraint to the syringe and is therefore enough for anticipating a generic carrier adapted to support the syringe, as defined in the claim.

The appellant's argument that no advancing force was imparted to the syringe via the rails or the mounting element is without merit since the transfer of such an advancing force is not required by the claim. More particularly, the Board does not see why such transfer should be implied by the term "carrier".

4.4 It follows that the subject-matter of claim 1 of the main request lacks novelty (Article 54(1) and (2) EPC) over D4 and is therefore not patentable in view of Article 52(1) EPC.

Hence, the patent cannot be maintained as granted.

5. First auxiliary request - inventive step

5.1 Claim 1 of the first auxiliary request, which is based on claim 1 and page 7, lines 22 to 26 of the application as filed, further defines a return spring that biases the syringe from the extended position to the retracted position and acts on the syringe via the syringe carrier.

It is common ground that D4 does not disclose such a spring.

5.2 The claimed return spring contributes to the technical effect of protecting the discharge nozzle of the syringe after the completion of an injection, thereby addressing the problem of preventing injuries for a user with a compact design of the injection device.

D4 provides for protection of the tip of needle 600 at the end of the injection in a different way, i.e. by means of a shroud (700) which is moved forward to cover the needle in the extended position (shown in figure 2(e)).

5.3 A combination of D4 with a document disclosing a return spring for biasing the syringe from the extended position to the retracted position such as D2 would require a complete redesign of the internal structures of the respective injection devices. Starting from D4, the only document analysed in detail by the respondent in its reply to the statement of grounds, it would have to be considered, for example, that spring 480 continues to act on plunger 400 at the end of the injection. Hence, irrespective of whether such a return spring is disclosed in D2, D7 or D8 or is well known, the skilled person would not combine such a spring with the injection device of D4 in an obvious way.

5.4 It follows that the subject-matter of claim 1 of the first auxiliary request is inventive (Article 56 EPC) over the cited documents of the prior art.

6. The description has been brought into conformity with the claims of the first auxiliary request.

The respondent did not raise any other objections to the first auxiliary request. The Board does not have any either.

7. Hence, the patent can be maintained on the basis of the first auxiliary request, and there is no need for the Board to consider the appellant's lower-ranking requests.