T 0924/17 11-10-2019

Reasons for the Decision

1. The appeal is admissible since it complies with the requirements of Article 108 EPC and since a valid authorisation was filed by the representative on 6 June 2017, for the following reasons.

The President of the EPO determines under Rule 152(1) EPC the cases in which an authorisation shall be filed and may determine the form and the content of an authorisation (Rule 152(5)). According to Article 1(1) of the "Decision of the President of the European Patent Office (EPO) dated 12 July 2007 on the filing of authorisations" a professional representative (whose name appears in the list maintained by the European Patent Office) is required to file a signed authorisation only under the circumstances set out in Article 1(2), (3) of said "Decision" of the President.

The circumstances of the case in point are those set out in Article 1(2), wherein a change of professional representatives has occurred, without the EPO being notified that the previous representative's authorisation has terminated. In this case the new representative must file (together with the notification of his appointment) an individual authorisation (or a reference to an authorisation already on file) (Article 1(2) of the "Decision" of the President of the EPO) or, if he does not, as in the present case, he shall be requested to do so within a period to be specified by the EPO (Article 1(2) of the "Decision" of the President of the EPO and Rule 152(2) EPC).

The new representative filed in due time on 6 June 2017 a signed authorisation, following the invitation by the EPO according to Rule 152(2) EPC. The authorisation bears a signature with date of 23 May 2017, i.e. after lodging the notice of appeal.

There is no requirement however, either in said "Decision" of the President of the EPO or in Rule 152(2) EPC, for the signature's date to be prior to the filing date of the notice of appeal, let alone a requirement that any procedural step taken before the signature's date be explicitly approved in the signed authorisation. This would be tantamount to requiring proving the existence of a previous informal oral or written authorisation, which entitles the representative to act on behalf of a party ("Bevollmächtigung") and further, this would also be contrary to the intended purpose of Rule 152(2) EPC, which is clearly to allow to remedy the missing filing of the authorisation, as it appears implicit and evident that the authorisation generally relates to and encompasses any action by the new representative during specific ongoing proceedings before the EPO, as in the case in point.

Finally, the Board notes that the new representative has offered (not needed further) evidence (and already provided partial evidence in the form of E-mails between the representative and the Appellant) for the existence of a previous informal agreement with the Appellant, empowering the representative to file the notice of appeal.

The decisions cited by the Respondent are not relevant to the present case and do not contradict the above conclusions of the Board.

In particular, in case T 1846/11 a legal practitioner (not a professional representative) was involved, who is required by Article 2 of said "Decision" of the President of the EPO to always file a signed authorisation or a reference to a general authorisation already on file and who did not provide it. A later filed general authorisation was not considered as being valid at the time of filing the notice of appeal, since there was no evidence that at that point in time said legal practitioner was a member of the list of professional representative (Article 134(1)) and belonged to an association of representatives.

In case T 1685/08 an authorisation was exceptionally requested pursuant to Article 1(3) of the "Decision"" of the President of the EPO, as there were doubts as to the existence of the Appellant as legal entity and as to the representative's entitlement to act. Such an authorisation was not filed.

In decision T 267/08 an authorisation was filed which did not meet the formal requirements, in particular no original version of the authorisation had been filed and this deficiency was not remedied.

2. The Board considers that the legal situation concerning the representative's entitlement to act on behalf of the Opponent in this proceedings can clearly be derived from the EPC in conjunction with Article 1(1) and 1(2) of the "Decision of the President of the European Patent Office (EPO) dated 12 July 2007 on the filing of authorisations", as explained above. Therefore no question of law of fundamental importance arises and, in particular, none of the questions as put forward by the Respondent (cf. above point III) constitutes a question of law of fundamental importance.

Therefore, no questions of law of fundamental importance arise in the present case specifically concerning the time limit for filing an appeal (question 2) or in connection with Rule 50 (3) EPC (question 5), which is immaterial to the present decision.

Furthermore, it ensues from the above conclusions (see point 1) that no diverging case law exists concerning the case in point and therefore there is no need for a referral of the present case to the Enlarged Board of Appeal (Article 20(1) RPBA (Rules of Procedure of the Boards of Appeal)).

3. The subject-matter of claim 1 (as granted) is new over D1 since the features 1.6 to 1.8 are not clearly and unambiguously disclosed in D1.

4. The subject-matter of claim 1 (as granted) lacks an inventive step over D6 in view of D9. D6 discloses all the features of claim 1 with the exception of feature 1.8, given features 1.6 and 1.7 being known from D6, contrary to the Respondent's view.

In effect, D6 shows in the embodiment of figure 2 that the data of three sensors (Sensor 1 to Sensor 3, one sensor being e.g. a Lidar-Sensor and another sensor being an optical sensor (video camera)), are fed together and synchronously to the control unit CON (see D6, e.g. [0032], [0033], [0014])), [0011], [0009]), the signal from each sensor being available for all different applications (i.e. information and detection functions) (D6, [0032], [0011]) and the complete information obtained by the control unit through parallel data processing of all sensors (or at least two) (see D6, e.g. claim 2, [0032] (see e.g. "thereby each application is provided with the data of a plurality or of all sensors and not of only one sensor); see also [0034] ("gemeinsame Datenverarbeitungs­einrichtung"), [0033]) is communicated to a controller interface ITF(C) and to an operator (driver) interface ITF(D), i.e. to all different applications (software modules constituting said information and detection functions) at the same time (see D6, [0032], [0033], [0019], [0009]). Thus at least two software modules are activated at the same time (i.e. in parallel), as also confirmed by claim 1 of D6 (see e.g. "an output for delivering an output signal to each driver-assistance application (App1, App2, App 3) of a plurality of driver-assistance applications").

Thus, starting from D6 the skilled person would envisage increasing the reliability of said information and detection functions and would realize that D9 obviously provides an improvement over the known system, i.e. particularly by detecting the presence of dirt on the lens of a camera (see D9, abstract). Further, the method and system of D9 "can be operated at any time when the vehicle is being driven at a relatively low speed ... and thus, can operate in the background without interfering with the processing of image frames captured by the camera for display on a dashboard mounted visual display screen" (D9, page 4, lines 15-20). Therefore, D9 clearly indicates that its method does not interfere with processing of image frames by other software modules (i.e. detection and information functions) and (as contended by the Opponent) the skilled person would in an obvious manner e.g. arrange such a dirt detection module parallel (and in addition) to the other parallel software modules or applications, thus receiving processed data from the controller CON (D6, figure 2) through interface ITF(C), or, if needed, possibly through a further interface. Thereby the feature 1.8 and the subject-matter of claim 1 would be obtained without an inventive step being involved (Article 56 EPC).

The Respondent's arguments could not convince the Board. In particular, claim 1 and the patent specification (EP-B) do not give a precise definition of the term "software module", save for indicating that it is "a small self-contained program that carries out a clearly defined task and is intended to operate within a larger program suite" (see EP-B, [0037]). D6 discloses different applications or information and detection functions (e.g. Adaptive cruise control, Traffic jam assist, Traffic sign recognition, Lane departure warning, Blind Spot detection etc. see [0024], [0032]), all of which are self-evidently implemented by software programs (intended to operate within a larger program) which are separate, distinct and limited to one specific application, thus being also self-contained, thus clearly fulfilling the aforementioned broad definition of "software module" given in EP-B.

Further, D6 undoubtedly discloses in the embodiment of figure 2 that data from different sensors are processed in parallel, as inferred e.g. from the statement "thereby each application is provided with the data of a plurality or of all sensors and not of only one sensor" (D6, [0032]) and confirmed by the further indication that "the input of data from different sensors to the control unit may occur simultaneously or sequentially" (see [0009]).

Moreover, "parallel" processing as included in features 1.6 to 1.8 of claim 1 is not defined in the claim and a precise definition is likewise missing in EP-B. Therefore it must generally be merely understood as meaning that different data (e.g. from different sensors) are processed at the same time, which certainly applies to the method of D6, as set out hereinbefore. This however does not exclude that data processing in said control unit may include a feedback ("Rückkopplung") between data from different sensors (see D6, e.g. [0035], claims 2, 3, 5), as no requirement is present in claim 1 for an exclusively independent processing of data from different sensors.

5. The Board decided to exercise its discretionary power not to admit auxiliary request 1 under Article 13(1), (3) RPBA (Rules of Procedure of the Boards of Appeal).

Firstly, new auxiliary request 1 was submitted very late during oral proceedings (at 4:10 pm) and is clearly late filed, given in particular (contrary to the Respondent's view) the question of inventive step involved in feature 1.8 (according to the one alternative indicating a dirt detection module running in parallel with another software module) and based on the line of argument including D6 and D9 having been thoroughly discussed by the Appellant (see e.g. statement of grounds, page 16; letter filed 18 July 2018, page 12) and by the Respondent (see e.g. letter filed on 30 April 2018) already in the written proceedings. Consequently the Respondent's argument is not plausible that the relevance of D9 became apparent only during oral proceedings. Moreover, the Respondent's evident intent and aim was during the entire appeal (and opposition) proceedings to seek protection for the subject-matter according to both alternatives included in claim 1, as all previously submitted (main and auxiliary) requests include both said alternatives. Therefore, the Respondent obviously knew that all requests on file could in principle fail if only one of said alternatives did. Nonetheless, the Respondent apparently deliberately chose not to file further requests until the very last moment during oral proceedings. It is concluded that new auxiliary request 1 was clearly late filed, therefore the Board under Article 13 (1) RPBA has a discretionary power not to admit this request.

Secondly, the specific circumstances of the present case very clearly lead to the conclusion that none of the criteria mentioned in Article 13(1) RPBA would warrant admission of auxiliary request 1 into the proceedings.

In the first place, new auxiliary request 1 deletes one alternative in feature 1.8 (which alternative is included in the main request and in all auxiliary requests previously on file (see former auxiliary requests 1 and 2)). Thus, new auxiliary request 1 necessarily entails dealing with this second alternative to an extent and in detail as never discussed before.

In particular, all the objections specifically related to this second alternative would obviously need to be discussed, such as the question of inventive step in view of D6 and each of documents D5, D8, D10 to D15, similarly in view of D3 and each of documents D5, D8, D10 to D15, further the admissibility under Article 12(4) of documents D16 to D21 and (at least) the relevance of D20 to the question of novelty and of D16 to D19, D21 to the question of inventive step, still further the admissibility under Article 12(4) RPBA of documents D22 to D28 and (at least) their relevance to the question of inventive step. Moreover, each one of these objections involves complex issues as illustrated e.g. by the fact that after the discussion of inventive step objections based on D6 and D5 (which was the only line of argument on inventive step, beside that one based on D6 and D9, discussed during oral proceedings) the Board did not arrive at a definite conclusion, implying that even this issue would have needed further debate. Such complex issues would necessarily arise as new aspects for discussion in respect of almost anyone of the documents D16 to D21 and D22 to D28 (and all lines of argument based thereon), given these documents (and respective lines of argument) having been discussed only at margin, in a succinct and cursory manner heretofore during opposition and appeal proceedings (see for instance appealed decision, points 14.3.2 and 14.3.3 in relation to documents D16 to D19 and D21).

It is therefore obvious that the Respondent's argument implying no longer discussions being needed to deal with new auxiliary request 1 are unfounded.

From the above facts it likewise necessarily already ensues that claim 1 of new auxiliary request 1 is not prima facie clearly allowable.

In view of the above reasons the Board considered that at the given state of the proceedings admitting new auxiliary request 1 was also contrary to procedural economy, thus none of the criteria mentioned in Article 13(1) RPBA being compatible with the admission of new auxiliary request 1. Moreover, in all likelihood this would have rendered necessary to adjourn the oral proceedings, due to the number and complexity of the issues to be discussed, this being clearly also at odds with Article 13(3) RPBA.

6. The subject-matter of claim 1 of auxiliary request 2 does not involve an inventive step (Article 56 EPC) in view of D6 and D9 and the skilled person's common general knowledge. Indeed, the added feature cannot contribute to inventive step. In effect, the feature implying that in hazardous cases an indication such as an optical or an acoustical or a tactile signal is given to the driver is explicitly suggested in D6 (D6, [0026]), stating that "by means of a driver (or an operator) interface the driver may be given indications (or hints) or it may be warned". In particular, it would be obvious for the skilled person to give the driver indications in hazardous cases, these indications being e.g. of "acoustic, haptic or visual" type (see D6, [0026]). Moreover, the warning signal may result or be derivable from the indications (information) of only one application (software module), as no further specifications are implied by the claim's wording, contrary to the Respondent's view.

7. The subject-matter of claim 1 of auxiliary request 3 does not involve an inventive step over D6 and D9 and the skilled person's common general knowledge. The added feature cannot contribute to inventive step, as D6 already suggests that by means of "an autonomous vehicle-control interface the vehicle may be acted upon - e.g. through braking or accelerating - without the driver being involved" (D6, [0017]). Therefore, said autonomous vehicle-control interface constitutes an interface between the hazard detection and information system disclosed in D6 (see above point 4) and the vehicle, any interface with the vehicle being obviously implemented by the skilled person e.g. as an interface with the vehicle internal bus system, such a vehicle internal bus system constituting common general knowledge. In particular, the interface ITF (C) as illustrated in the embodiment of figure 2 may also be configured as an interface with the internal bus system. For these reasons the claimed subject-matter lacks an inventive step (Article 56 EPC).