T 0241/88 20-02-1990

Reasons for the Decision

1. The appeal is admissible.

2. Formal aspects of the claims.

2.1. All independent claims of the request now relate in their precharacterising part to US-A-3 775 745 (D1).

These precharacterising features are disclosed in the initial Claim 1 of the patent application up to "and giving an alarm..." and for the rest in the forecasting calculation routine 100 described in column 6, lines 11 to 21 in relation to Fig. 5 in particular as regards "a second predetermined temperature" of for example 100°C in Fig. 5 and "a given rate" which obviously refers to points in the hatched region of Fig. 5 for which an "alarm" is given.

2.2. Considering the characterising features of Claim 1 of the main request, according to the explanations given by the Respondent these features represent a definition of the sloping part of the borderline between the hatched and blank areas in Fig. 5 of the patent. The Respondent argued that Fig. 5 being part of the disclosure, features may be taken from the drawing to define the subject-matter protection is sought for.

In this respect the Board draws attention to the fact that although in principle features contained in the drawings may be included in the claims, in accordance with a former decision of this Board (T 169/83 OJ EPO 1985, 193) the condition must be satisfied that the features are clearly shown in the drawings originally filed and are clearly, unmistakable and fully derivable from the drawings in terms of structure and function by a person skilled in the art to enable him to recognise these features as forming part of the invention when considering the content of the description as a whole.

In the Board's judgment the latter condition is not satisfied in the present case.

Figure 5 of the patent represents a schematic diagram of a hatched region in a presentation of the water temperature against the calculated water temperature increase with time. Although it can be recognised that the borderline between these two regions contains a straight and sloping part, the exact nature of the sloping part such as the slope angle or "end" points of this part are neither clearly derivable from the Figure nor from the description. Moreover, the description refers to "the hatched region" of Fig. 5 as an overheating condition only and does not contain any reference to the form of the borderline or relevance of the sloping part for the invention.

Therefore, while it can be accepted that the hatched region of Fig. 5 represents different "given rates" (see also §2.1 above) no clear disclosure that the given rate changes in the manner as defined in the characterising part of the main request can be found in the patent.

For these reasons Claim 1 of the main request is not acceptable on grounds of Article 123(2) EPC (added subject-matter).

2.3. Considering independent Claim 5 of the main request the Board notes that in addition to the objections of lack of support and added subject-matter as put forward against Claim 1, which objections apply also to Claim 5, the subject-matter of Claim 5 is additionally unacceptably extended with respect to Claim 5 in the form as originally submitted and published in the patent by leaving out the feature that voice alarm generator means are provided. Therefore this claim is also not acceptable for reasons of Article 123(3) EPC.

Since, as established above, Claim 1 is not acceptable, the argument advanced by the Respondent in respect of Claim 5, namely that it is drafted in dependent form based on a Claim 1 which satisfies Article 123 EPC, has no basis; Claim 5 is therefore not acceptable. Moreover the Board cannot accept the principle upon which this submission is based for the reason that Claim 5 relates to an apparatus for carrying out the method of Claim 1 and is therefore of a different independent category; it is only related to Claim 1 in as much as the apparatus defined in Claim 5 is suitable for carrying out the method of Claim 1.

2.4. The characterising features of Claim 1 of the first alternative request also relate, according to explanations given by the Respondent, to a definition of the sloping part of the borderline in Fig. 5 of the patent. As set out above the Board considers that the application as filed does not contain a sufficient disclosure that would justify the interpretation now given in this Claim 1 and therefore also Claim 1 of the first alternative request is, in the Board's judgment, not acceptable for reasons of Article 123(2) EPC. As a consequence also the first alternative request must be rejected as a whole.

2.5. The characterising features of Claim 1 of the second alternative request are disclosed in column 5, from line 40 to column 6, line 21 in combination with Fig. 4 and 5 of the patent in accordance with the original disclosure.

The characterising features of Claim 1 of the third alternative request are contained in the Claim 8 of the patent and of the original application.

These claims are therefore formally acceptable.

3. Patentability, second alternative request

3.1. The nearest prior art is considered to be disclosed in D1. In accordance with the precharacterising features of Claim 1 of this request (see §2.1 above) D1 discloses that an alarm is given when two conditions are satisfied namely (i) the value of the detection (temperature) signal and (ii) the rate of increase in the value of said detection (temperature) signal both fall within a predetermined region in a representation of the relationship between these two variables: these features are the result of the control circuit in Fig. 4 of D1 in particular when considering the function of AND gate 30.

In this respect the Board drew attention during the oral proceedings to the fact that the formulation in Claim 1 of this request does not demonstrate the difference of the known predetermined region when compared to the predetermined region as presented by the hatched region in Fig. 5 of the patent.

3.2. The subject-matter of Claim 1 of the second subsidiary request differs from the known abnormality forecasting and warning method according to D1 in that

(a) the time period (n) between successive intervals is determined in such a manner that the higher the value of the detection signal (Tw) or the higher the rate of increase (dT) thereof, the shorter is the said period between successive intervals; and

(b) the predetermined region is stored in a memory of a microcomputer.

The subject-matter of Claim 1 of this request is therefore novel. Novelty of the subject-matter of this claim was not disputed by the Appellants during the oral proceedings in particular in view of the fact that D1 does not contain feature (b) above.

3.3. The features (a) and (b) above are not related in a manner that a combinatory effect is achieved and should therefore be considered separately rather than in their combination.

3.4. Considering feature (b) the Board notes that in D1 the "predetermined region" is defined in the hardware constituted by start of heating detector A3 and rate trigger A2(b) (see Fig. 4 of D1) thereby specifying an area in a temperature-temperature increase rate diagram for which an alarm is given.

However other possibilities are available to the skilled control engineer for specifying such an area in a representation of two variables of which possibilities, in view of the easy access and programmation, it is in the Board's opinion, obvious to store the above relationship in a memory of a microcomputer. Therefore in the Board's judgment feature (b) merely represents an obvious alternative of the known area defining elements and is without any inventive significance.

3.5. Considering feature (a) the Board recognises that these features result in a more accurate forecasting of an abnormality in particular near the "first predetermined value".

The object of the subject-matter of Claim 1 of the second subsidiary request thus essentially relates to an improvement of the known forecasting method of D1 to achieve a more accurate forecasting, in particular at higher values of the detection signal.

The Board notes that the Appellant I pointed out in the oral proceedings that D1 in column 1, lines 24 and 25 discloses that the permissible time interval shortens as the temperature rises and that therefore feature (a) is implicitly disclosed in D1.

However, as put forward by the Respondent, which interpretation is supported by the Board, considering the whole paragraph in column 1, starting from line 20 it is clear that the "time interval" referred to is not a time interval for measuring a temperature rise in the sense as used in Claim 1 under consideration but merely a time period during which higher temperatures may be allowed in a gas-turbine without creating an overheated condition. Therefore the above paragraph in column 1 of D1 cannot be construed to represent an implicit disclosure of feature (a).

Nevertheless, considering the determination of the rate of increase, in the Board's opinion, the skilled control engineer would immediately realise that during the calculating interval of the temperature rate the upper limit should not be exceeded and that therefore adaptation of the interval becomes necessary in order to be able to still make a forecast near the highest acceptable temperature. In this respect the Board is of the opinion that it is part of the general knowledge of the control engineer that measuring frequencies should be selected higher, thus leading to shorter measuring intervals, when the measured parameter indicates the approach of a critical situation.

Therefore feature (a) is considered to relate to an obvious further development of the known abnormality forecasting and warning method disclosed in D1 rather than that inventive ingenuity was necessary for adapting the known method to include feature (a).

3.6. Since, as referred to above, features (a) and (b) do not result in any surprising or combinatory effect and the features (a) and (b) by themselves are not inventive, their combination cannot be considered to add anything inventive to the known method according to the precharacterising part of Claim 1 under consideration.

As a consequence Claim 1 of the second alternative request cannot be allowed for reasons of lack of inventive step. Therefore this request as a whole is not acceptable.

4. Patentability, third alternative request

4.1. This claim is also related in its precharacterising part to the nearest prior art disclosed in D1 and contains in its characterising part those features which are clearly novel with regard to the apparatus disclosed in D1. Therefore the subject-matter of Claim 1 of the third subsidiary request is novel. Since this was not disputed by the Appellants no further substantiation of this matter is necessary.

4.2. The features of the characterising part apparently lead to a more accurate forecasting when compared with the known forecasting disclosed in D1 and provide improved warning. The object of the invention is therefore related to an improvement of the known apparatus in this sense as this is set out on page 1, lines 22 to 24 of the adapted description filed in the oral proceedings.

4.3. The Board notes that the forecasting and warning apparatus according to Claim 1 of this request is very detailed and includes to a great extent the features of the embodiment described in columns 3 to 7, up to line 15 and as such provide a practicable arrangement of an abnormality forecasting and warning apparatus for judging the water temperature in an automobile.

4.4. Although, as set out above in §3.5 the skilled man would consider variable calculation cycles for determining the temperature change rate no lead can be derived from the cited documents, considering in particular D1, to the detail of the water temperature judging means defined in the first part of the characterising portion of Claim 1 under consideration with respect to Fig. 4 of the patent.

Further, the second memory means for storing the relation between water temperature and water temperature change rate and overheating trend detection means are linked to both visual and voice indicator alarm means in such a manner that account is taken of short and long-term overheating indications each with their own alarm means to which idea and detail also no lead can be derived from any of the cited documents.

Appellant II drew attention to D2, page 13, last paragraph which discloses that in addition to visual also acoustic signals may be given. He however failed to provide any arguments or evidence showing that these two alarm means may be operated in the manner as defined in Claim 1. Also the Appellants' argument that since the method steps of the known forecasting and warning disclosed in D1 do not differ in substance from these steps in the patent, the means for carrying out the method steps must be essentially the same, cannot be considered convincing.

Given the fact that method steps can be substantiated in many different ways, and considering that there was no proof that the features of Claim 1 can be derived in an obvious way from the prior art, the above contention must be regarded, in the Board's judgment, as mere speculation and hence not suited for detracting from patentability of the claimed subject-matter.

Summarising the Board comes to the conclusion that despite the fact that D1 discloses the idea of forecasting an abnormality on the basis of an unacceptable temperature increase rate over a particular temperature, there cannot be any probability that a skilled person being confronted with the object of the invention as set out above would arrive at the detailed apparatus defined in Claim 1 without the exercise of any inventive activity.

Consequently the subject-matter of Claim 1 of the third alternative request is considered to be based on an inventive step. Claim 1 is therefore acceptable.

4.5. Dependent Claims 2 and 3 concerning particular embodiments of the invention in accordance with Rule 29(3) EPC are likewise acceptable.

The description and drawings take account of the requirements of the EPC and are suitable for maintenance of the patent in amended form.