T 1482/21 10-05-2023

Summary of Facts and Submissions

I. Opponent 2 filed an appeal against the interlocutory decision of the opposition division to maintain the patent in amended form according to the main request filed during oral proceedings before the opposition division on 10 March 2021.

II. Oral proceedings before the Board took place on 10 May 2023.

The further party as of right (opponent 1) did not attend the oral proceedings as announced in their letter dated 13 December 2022. The oral proceedings took place in the absence of that party pursuant to Rule 115(2) EPC and Article 15(3) RPBA 2020.

III. The appellant (opponent 2) requested that the decision be set aside and the patent be revoked.

The respondent (patent proprietor) requested that the patent be maintained on the basis of the new auxiliary request filed on 28 April 2023.

IV. By letter of 31 May 2023 the appellant requested that the minutes of the oral proceedings be amended. The respondent did not comment on this request.

V. The following documents are relevant to this decision.

P1 US 61/937083

P2 US 61/942193

D2 FR 2 911 512

D4 US 2013/226219

D16 US 5,127,867

D18 US 2008/0121309

D30 US 5 014 757

D31 US 2005/0004430 A1

D32 GB 2 344 057

D38 US 3,580,303

D39 Gleysteen M.D., J J. (2016). 'Review article. A

history of intragastric balloons.' Surgery for

Obesity and Related Diseases, 12, 430-435.

D40 'Intragastric Balloon', Bray, G.A. & Bouchard, C

(2014) Handbook of Obesity, Clinical Applications

(Volume 2. Fourth Edition. Pages 422-423), Boca

Raton, USA: CRC Press.

D41a Zubrowski, Bernie, "Balloons. Building and

experimenting with inflatable toys" HarperTrophy,

1990, ISBN: 978-0688083243

D41b Debrun, M.D., G. et al., "Endovascular Occlusion

of Vertebral Fistulae by Detachable Balloons with

Conservation of the Vertebral Blood Flow",

Radioloav, Vol. 130, No. Issue 1, 1979

D41c US 179236 (A), 29.12.1899

D41d Salter's Chemistry Club, "HYDROGEN BALLOONS",

6 November 2007, [cited 24.07.2020] Available

from: [http://resources.schoolscience.co.uk/

Salters/pdfs/volone/SCC1_Prac21.pdf]

D41d' Wayback machine (Internet Archive), "Hydrogen

Balloons", [cited 25.07.2020] Available from:

[https://web.archive.org/web/20071106215307/

http://resources.schoolscience.co.uk/Salters/

pdfs/volone/SCC1_Prac21.pdf]

D41e US 600967 (A), 29.12.1899

D41f Questacon, "Model of a lung" 24.08.2011, [cited

27.07.2020] Available from: [https://youtu.be/

CBv2BqqAydE]

D41g Sarah, "Home Wine-making Getting Started"

21.01.2013, [cited 22.08.2020] Available from:

[http://arwz.com/ssblog/2013/01/21/homewine-

makinq-qettinq-started/]

D41h Central Board of Secondary Education, "Biology.

Unit-1. Life Processes" Delhi, India: CBSE-

International, 02.06.2012

D41i Ruhland, Peta, "Coopers Home Brew Kit"

18.03.2008, [cited 12.07.2020] Available from

[https://www.coroflot.com/PetaRuhland/Coopers

Home-Brew-Kit-Uni]

D41j Cake and Commerce, "Making sausage with a food

processor and a pastry bag" 26.04.2009, [cited

12.07.2020] Available from:

[https://cakeandcommerce.typepad.com/

cake_and_commerce/2009/04/sausage-making

tips.html]

D41k Parker, Louise, "The OPAL DIY Weather Kit"

02.03.2011, [cited 24.07.2020] Available from:

[https://www.slnnr.org.uk/documents/projects/

opal/Weather%20kit.pdf]

D41l Gupta, Arvind, "Balloon Pump" 16.01.2010, [cited

25.07.2020] Available from: [http://

www.arvindguptatoys.com/arvindgupta/toys/pdf/

balloonpumpdoit.pdf]

D41l' Visio Spark, "Visio Spark Last Modified Time

Checker", [cited 25.07.2020] Available from:

[visiospark.com/last-modified-time-checker]

D41m Gupta, Arvind, "Simple Rocket" 18.05.2011, [cited

24.07.2020] Available from: [https://youtu.be/_

h61FBLJDhE]

D41n Gupta, Arvind, "Balloon Bugle" 26.08.2013, [cited

24.07.2020] Available from: [https://youtu.be/

qtWHqd6sGfs]

D41o Gupta, Arvind, "CD-Hovercraft" 05.12.2009, [cited

24.07.2020] Available from: [https://youtu.be/

cYlyY6Hel8]

D41p Anthony, Dorothy, "How Air Moves In and Out of

the Lung" 01.02.2002, [cited 11.07.2020]

Available from: [https://mypages.iit.edu/~smile/

bi9203.html]

D41p' Internet Archive, "WayBack Machine" , [cited

22.08.2020] Available from: [https://

web.archive.org/web/20091101000000*/https://

mypages.iit.edu/~smile/bi9203.html]

D41q Gupta, Arvind, "Spinning Balloon" 03.01.2014,

[cited 24.07.2020] Available from: [https://

youtu.be/W4AHA4nN6fo]

D41r NASA, "Mars Exploration. Is There Water on

Mars?" 27.06.2013, [cited 25.07.2020] Available

from: [https ://www .nasa.gov/pdf /58223main_Is.

There.Water.on.Mars.pdf]

D41r' Visio Spark, "Visio Spark Last Modified Time

Checker", [cited 25.07.2020] Available from:

[visiospark.com/last-modified-time-checker]

D41s Dice, David et al., "The Pressure-Volume

Behaviour of Gas in a Balloon" 03.10.2009,

[cited 24.07.2020] Available from: [http://

www.digipac.ca/chemical/gaslaws

ThePressureInABalloon.htm]

D41s' Visio Spark, "Visio Spark Last Modified Time

Checker" [cited 25.07.2020] Available from:

[visiospark.com/last-modified-time-checker]

D41t Gupta, Arvind, "Balloon Pump" 06.08.2009, [cited

25.07.2020] Available from: [https://youtu.be/

JkTC0nWlk04]

D41u Bel Art Scienceware, "Bel-Art Products Catalog"

Wayne, USA: Bel-Art Products, 2010

D41v Gupta, Arvind, "Balloon Sprinkler" 16.07.2010,

[cited 26.07.2020] Available from: [https://

youtu.be/viQuA_Gr9kM]

D41w Prigo, Robert, "Making Physics Fun" Corwin

Press, 2007 ISBN: 9781412926621

D41x Design Squad Global, "4-Wheel Ballon Car"

14.09.2012, [cited 26.07.2020] Available from:

[https://youtu.be/K8hu5Y-9AZ8]

D41y Moore, Ashley, "Hands-on Science Fun with

Balloon Boats" 30.09.2012, [cited 26.07.2020]

Available from: [https://

www.lifewithmoorebabies.com/2012/09/balloon-

boats.html]

D41y' Moore, Ashley, "Hands-on Science Fun with

Balloon Boats" 30.09.2012, [cited 22.08.2020]

Available from: [https://

www.lifewithmoorebabies.com/2012/09/balloon-

boats.html]

D42a Merriam-Webster, Cambridge University Press, and

Oxford University Press, "adjacent (dictionary

meanings)", [cited 23.07.2020] Available from:

[merriam-webster.com, dictionary.cambridge.org

and lexico.com]

D42b Merriam-Webster, Cambridge University Press, and

Oxford University Press, "juxtapose (dictionary

meanings)", [cited 23.07.2020] Available from:

[merriam-webster.com, dictionary.cambridge.org

and lexico.com]

D43a Judgement of the Dutch Patent Court in Tinnus et

al. vs Koopman, nullifying EP 3 005 948 B1

D43b Partial translation of D43a

VI. Claim 1 of the new auxiliary request reads as follows.

"An apparatus comprising:

a housing (12) comprising a threaded opening at a first end (A) and a plurality of holes (26) at a second end (B); and

a plurality of hollow tubes (16), wherein each hollow tube (16) is attached to a respective hole of said plurality of holes (26),

wherein all of the hollow tubes of the apparatus extend from said housing to respective tube ends at where the tube ends present a plurality of adjacent inflatable containers (18),

wherein each tube end is removably joined to a respective one of said inflatable containers in a sealed manner by an elastic ring (20) disposed around a neck of the inflatable container,

and wherein the tubes facilitate the simultaneous filling of the inflatable containers with a liquid,

said elastic rings being configured to each slide with the corresponding inflatable container when each

inflatable container is detached from the corresponding hollow tube and, upon removal of the inflatable container from the corresponding tube, to constrict the neck of the inflatable container, sealing it with the liquid inside."

Claim 3 of the new auxiliary request reads as follows.

"The apparatus of claim 2 wherein the first end (A) of the housing has a threaded inner surface (22) at the threaded opening."

Claim 7 of the new auxiliary request reads as follows.

"The apparatus of claim 6, wherein the elastic rings (20) are configured to permit removal and sealing of the containers (18) substantially simultaneously."

Claim 9 of the new auxiliary request reads as follows.

"A method of filling a plurality of inflatable containers simultaneously with a liquid, comprising:

attaching a housing (12) to a liquid source, wherein the housing comprises a threaded liquid inlet and a plurality of holes (26) separated from the liquid inlet, and further comprises a plurality of hollow tubes (16) each hollow tube (16) being attached to a respective hole of the plurality of holes (26), all of the hollow tubes (16) extending from said housing (12), in a juxtaposed manner, to respective distal tube ends, each tube end providing a liquid outlet opening that is in liquid connection with the liquid inlet, said tube ends presenting a plurality of juxtaposed inflatable containers (18), each container being removably attached to a respective tube end of the plurality of hollow tubes and about the liquid outlet of its respective hollow tube end, wherein an elastic ring (20) clamps a neck of each inflatable container in a sealed manner to a corresponding one of the hollow tubes;

supplying a liquid from the liquid source to the housing via the liquid inlet,

substantially simultaneously filling the plurality of inflatable containers with the liquid,

and detaching the plurality of inflatable containers from the plurality of hollow tubes, wherein when each inflatable container is detached from the corresponding hollow tube, the elastic rings slide with their respective inflatable container and, upon removal of the inflatable containers from their respective tube, seal their respective inflatable container with the liquid inside by constricting the neck of their respective inflatable container."

VII. The appellant's arguments relevant to the decision can be summarised as follows.

Priority

According to the Receiving Section's decision of 14 January 2016, which had been taken following a request for re-establishment of rights by the former applicant and now respondent, the application had been deemed to have been filed during a period of 12 months from the earlier application. This decision - and hence also the claimed priority - was not valid, in particular due to the Receiving Section's alleged lack of competence to take this decision. Moreover, it should in any case be possible to assess and review all preconditions for an entitlement to priority in opposition and opposition appeal proceedings, including whether or not the period of 12 months pursuant to Article 87(1) EPC had been observed.

Moreover, the combination of features in claims 1, 2, 3, 7 and 9 of the patent as granted was not disclosed in P1 or P2. Hence, the invention as defined by these claims was not the same invention as the one disclosed in P1 and P2, resulting in a lack of priority of at least these claims.

More specifically,

- P1 and P2 disclosed a housing with a threaded opening, while in claim 1 the feature "threaded" had been omitted and claim 9 defined a housing having a liquid inlet instead of a threaded opening;

- P1 and P2 disclosed a housing with a second end being opposite to the first end, while in claim 1 the feature "opposite" had been omitted and claim 9 defined a housing having a plurality of holes separated from the liquid inlet;

- neither P1 nor P2 disclosed the feature "in a juxtaposed manner" of claim 9;

- neither P1 nor P2 disclosed the features of claim 2;

- neither P1 nor P2 disclosed the features of claim 3, in particular an additional opening;

- neither P1 nor P2 disclosed the features of claim 7.

Clarity

It was not clear whether the threaded inner surface defined in claim 3 was provided in addition to the threaded opening of claim 1 or whether the definition of a threaded inner surface was redundant. Hence, claim 3 was either not clear or not concise.

Added subject-matter

According to claim 3 a threaded inner surface was provided in addition to the threaded opening already defined in claim 1. This was not disclosed in the application as originally filed.

Furthermore, the following features infringed Article 123(2) EPC.

a) "all the hollow tubes extend from said housing to

respective tube ends" of claims 1 and 9,

b) "said elastic rings are configured to slide..." of

claims 1 and 9,

c) "the elastic rings are configured to constrict the

neck of the container" of claim 1,

d) "the elastic rings are configured to permit removal

and sealing of the containers substantially

simultaneously" of claim 7,

e) "all of the hollow tubes extending from said

housing, in a juxtaposed manner" and "said tube ends

presenting a plurality of juxtaposed inflatable

containers" of claim 9.

As to point a), Figure 1 referred to by the opposition division disclosed the feature "all the hollow tubes extend from said housing to respective tube ends" only in connection with the features "balloons" and "different lengths of the tubes". The omission of these features constituted an unallowable intermediate generalisation.

As to point b), the passage at page 12, lines 35 to 36, of the application as originally filed did not refer to elastic rings but to elastic valves. Furthermore, this passage did not disclose that the rings were configured to slide with the containers.

As to point c), from the passage at page 11, lines 4 to 7, of the application as originally filed, it could not be derived that the rings were configured to constrict the neck of the container since the term "they" in line 7 referred to the other embodiments mentioned in the preceding sentence.

As to point d), it could not be derived from the original application documents that the containers of the apparatus were all removed substantially simultaneously and (after that) were all sealed simultaneously. The passage at page 14, lines 8 to 14, merely disclosed that the containers were filled simultaneously, and that they could be removed when they had received a desired size.

As to point e), the term "juxtaposed" used in claim 9 was not necessarily synonymous with "adjacent" used in claim 1 (D42a and D42b). The passage at page 6, lines 1 to 3, forming the only written basis for the term "juxtaposed", did not relate to the embodiment of claim 9. Moreover, this passage only referred to balloons and not to tubes. Hence, there was no basis for a juxtaposed arrangement of the tubes and containers as defined in claim 9.

Hence, claims 1, 3, 7 and 9 did not meet the requirements of Article 123(2) EPC.

Inventive step starting from D18

The subject-matter of claims 1 and 9 lacked an inventive step starting from D18 in combination with the common general knowledge or D2.

D18 disclosed an apparatus that was intended for the simultaneous filling of a plurality of balloons with water (Figures 12 and 13; claim 1 and paragraphs [0027] and [0028]).

The subject-matter of claims 1 and 9 differed from this apparatus only in that it comprised elastic rings which were suitable to slide with the balloons and to constrict their necks.

The objective technical problem could either be regarded to save time needed to seal the balloons or to provide an alternative for the balloon ties and seals mentioned in D18 (paragraphs [0029], [0088], [0112], [0113], [0033], [0153] and [0132]).

The person skilled in the art would, based on their common general knowledge as exemplified in any of documents D38 to D41y, obviously apply elastic rings around the nozzle and balloon necks of the apparatus of D18 so that the rings closed the balloons upon removal. The resulting combination of an apparatus with balloons and elastic rings fell within the definitions of claim 1 and claim 9, making the invention obvious.

Moreover, D2 disclosed a balloon filling apparatus with elastic rings 11 clamping a neck of a balloon 2 at an end of a tube 6, and closing the balloon upon removal from the tube by constricting the neck (page 5, lines 13-17). The balloon was inflated with a fluid (generic for liquid and gas; page 1, lines 6-7). D2 aimed to provide a solution for the tying of balloons, which was faster than the known manual tying (page 1, lines 22 to 24). The person skilled in the art would therefore be motivated to apply the solution of D2 to the apparatus of D18.

It was unlikely that the elastic ring would roll off, due to the high coefficient of friction between a latex balloon and an elastic ring, usually also made of latex. Moreover, a preferred nozzle of D18 had grooves which would hold the elastic ring (Figure 29). Even if the problem of rolling off would occur, a skilled person would adjust the nozzle of D18 in such a way that the elastic ring would not roll off, e.g. by reducing the taper. This was a routine workshop modification. In fact, D18 explicitly taught that various shapes of the nozzles might be used (paragraph [0079]).

The person skilled in the art would also apply the way that D2 taught for attaching the balloon to the nozzle (Figures 2 and 3). When in the inverted position as shown in Figure 3, the water pressure would push the balloon out of the nozzle without the need to use the push stick 12 shown in Figure 12. Since D18 taught that the nozzles 3 could be any kind of nozzles (paragraphs [0079] and [0100]) and since D2 disclosed that the inflation tube 6 could be attached to an inflator, i.e. an apparatus (page 4, lines 16 to 19), the person skilled in the art would even envisage replacing the nozzle of D18 by the inflation tube of D2.

The person skilled in the art had a strong reason to apply the teaching of D2, because of the explicit statements in D2 that the proposed use of elastic rings was quicker than closing the balloon by hand (page 1, lines 15 to 24). Moreover, they would recognize that the advantage obtained by the solution of D2 was gained times four if applied to all four nozzles of the apparatus of Figure 12 of D18. Hence, D2 prompted the person skilled in the art to apply elastic rings around the balloons and nozzles of D18, or to replace the nozzles of D18 by the inflation tubes - including the balloons and elastic rings - of D2.

Hence, the apparatus according to claim 1 and the method according to claim 9 were rendered obvious. This was also acknowledged by the Dutch Patent Court in a parallel nullification suit (D43a and D43b).

Inventive step starting from D16

The subject-matter of claims 1 and 9 lacked an inventive step starting from D16 in combination with the common general knowledge or any of D2, D30, D32 or D38.

D16 disclosed an apparatus with a housing in the shape of a pole 30. Plugs 28, 38, 44, 46 and 88 formed a plurality of hollow tubes attached to the housing at a hole. Balloons 20, 36, 40, 42 and 84 were attached to ends of the respective plugs. The rubber bands 226 could be regarded as elastic rings each clamping a neck of a balloon in a sealing manner to a corresponding tube.

D16 did not disclose that the rubber bands were configured to slide with each balloon when the balloon was detached from the tube and to constrict the neck of the balloon to seal it. As it was commonly known that elastic rings were capable of closing containers, the person skilled in the art would use this knowledge to adapt the rubber bands of D16 such that they sealed.

The subject-matter of claim 1 was also obvious in view of D16 in combination with any of D2, D30, D32 or D38. In order to solve the problem of avoiding balloon deflation when taken of its plug/tube, the person skilled in the art would learn from each of these documents that the same elastic ring which held an inflatable container on its filling tube was also capable of sliding with the container from the tube, and subsequently seal the inflatable container with a fluid inside. They would thus be motivated to adjust the rings of D16, and would arrive at an apparatus falling under the scope of claim 1 in an obvious manner.

Furthermore, all apparatus and method steps of claim 9 were disclosed in D16, apart from filling the balloons with a liquid rather than a gas. Based on the generic disclosure in D16 of fluids, it required no inventive skills to fill the balloons of D16 with water. Hence, the subject-matter of claim 9 also lacked an inventive step.

Inventive step starting from D31

The subject-matter of claims 1 and 9 also lacked an inventive step starting from D31 in combination with the common general knowledge or D4.

D31 disclosed an endoscopic device for inserting a balloon in the stomach of a person (paragraphs [0002], [0031] to [0033]). The balloon 1 was engaged to a guide pipe 3 by a rubber band 2 which sealed and released the balloon from this guide pipe after a proper amount of air was introduced into the balloon (Figures 2, 3 and 7). The only difference to the subject-matter of claims 1 and 9 was that D31 disclosed a single tube (the inner guide pipe 3) with a single balloon instead of a plurality of tubes with adjacent balloons. When faced with the problem that one balloon with the maximum recommended size was not sufficient to treat a specific obese patient, a person skilled in the art would simply use a second balloon inserted through the second channel of the endoscope, and fill both balloons simultaneously with salt water.

Furthermore, the person skilled in the art would learn from D4 (paragraphs [0098] [0109] and [0159], Figure 32) to insert multiple balloons to increase the volume in a stomach of a patient. Moreover, D4 taught to use one guide pipe per balloon. The person skilled in the art would thus obviously adapt the device of D31 by using a second guide pipe with balloon and elastic ring to insert that into the second channel of the endoscope, and arrive at an apparatus within the scope claim 1, and the method of claim 9 without an inventive step.

Objections starting from D24/D27

The former main request lacked novelty and an inventive step based on D24/D27. In view of the invalid priority of the claimed subject-matter, D24/D27 belonged to the prior art. Starting from the assumption that the priority of P1 and P2 was not or only partially valid, i.e. at most valid with regard to a housing with a threaded opening/inlet, the sole differentiating feature between D24/D27 and the independent claims was that the opening/liquid inlet of the housing was not threaded. Knowing that the threaded opening/liquid inlet in a housing of a Bunch-o-Balloons water balloon filling apparatus was used to connect the apparatus to a water hose with a threaded connector, it would have been obvious for the skilled person to provide a water balloon filling apparatus with a non-threaded opening/liquid inlet.

Request for amendment of minutes of oral proceedings

The presentation of facts in the minutes was incorrect, as far as the (non-)maintenance of the objections of insufficiency of disclosure was concerned.

The objections of insufficiency of disclosure that had been made in writing against the original main request were equally applicable against the new auxiliary request. In fact, in the oral proceedings the appellant had maintained these objections, but had decided not to plead them again, and had requested the Board to take a decision based on the written part of the procedure. The respondent had declared to also not plead about the insufficiency of disclosure objections, and to be satisfied with a decision based on the written procedure.

Incidentally, and in accordance with the minutes, the novelty objections had not been maintained by the appellant.

The minutes therefore incorrectly stated that "The appellant did not maintain the objections of insufficiency of disclosure and the novelty objections which had been presented in writing against the main request". The minutes, in agreement with the actual events in the oral proceedings according to the appellant, should read here: "The appellant maintained the objections of insufficiency of disclosure which had been presented in writing against the main request, and did not maintain the novelty objections which had been presented in writing against the main request.", or similar.

The Board in fact had taken a decision on the sufficiency of disclosure of the (new) main request.

Furthermore, the last paragraph on page 3 of the minutes stated:

"The respondent then filed a corresponding amended version of the description, to which neither the appellant nor the Board objected."

This was an incorrect representation of this part of the oral proceedings. Namely, after an amended version of the description had been presented, the appellant had objected by indicating some further parts of the description requiring amendment, and one of these objections had been allowed by the Board, and had resulted in a further (hand-written) amendment.

In summary, it was requested that the minutes of the oral proceedings be corrected, and that the written decision be based on the corrected minutes.

VIII. The respondent's arguments relevant to the decision can be summarised as follows.

Priority

The Receiving Section found in its decision of 14 January 2016, which had been taken following a request for re-establishment of rights by the former applicant and now respondent, that the application had been deemed to have been filed during a period of 12 months from the earlier application. This decision was valid.

Furthermore, the invention as defined by claims 1, 2, 3, 7 and 9 of the patent as granted was the same invention as the one disclosed in P1 and P2.

Hence, the priority of P1 and P2 had been validly claimed.

Clarity

The alleged lack of clarity of claim 3 was not caused by an amendment of the claims during the opposition proceedings and was thus not open to examination by the Board. The feature "the first end of the housing has a threaded inner surface at the opening" was already included in claim 3 of the patent as granted.

Added subject-matter

The person skilled in the art would understand that claim 3 further specified the thread as being on the inner surface of the opening. Hence, claim 3 did not define a second thread and did not include added subject-matter.

As to point a), the person skilled in the art would recognize from Figures 1 and 2 of the application as originally filed that all the tubes extend from the housing to the inflatable containers.

As to point b), it was inherent in the disclosure of the description (page 12, lines 35 and 36) that in order for the elastic rings to constrict the neck of the containers, then the rings must also be arranged to slide.

As to point c), the feature "the elastic rings being configured to constrict the neck of the container" was clearly disclosed in the description of figures 1 and 2 in the application as originally filed (page 12, lines 35 to 36).

As to point d), the person skilled in the art could derive from various passages of the description (page 9, line 36, to page 10, line 3; page 12, lines 24 to 25; page 12, lines 35 to 36; page 13, lines 34 to 36; page 14, lines 6 to 14) that the elastic rings were configured to permit removal and sealing of the containers substantially simultaneously. As such, the application as filed explicitly taught that the containers were filled and expanded substantially simultaneously and subsequently slid off the tubes when they reached the desired volume of fluid and were consequently sealed simultaneously.

As to point e), the person skilled in the art would understand that Figures 1 and 2 unambiguously disclose hollow tubes and water filled balloons being arranged in a juxtaposed manner.

Hence, claims 1, 3, 7 and 9 met the requirements of Article 123(2) EPC.

Inventive step starting from D18

D18 failed to disclose the feature "said elastic rings being configured to each slide with the corresponding inflatable container when each inflatable container is detached from the corresponding hollow tube and, upon removal of the inflatable container from the corresponding tube, to constrict the neck of the inflatable container, sealing it with the liquid inside".

D18 already disclosed in paragraphs [0029], [0088], [0112] and [0113] suitable means for tying the balloons, such as balloon ties or ribbons. Even if the person skilled in the art would seek an alternative for these means, as alleged by the appellant, and arbitrarily select elastic rings to replace the disclosed balloon ties and/or ribbons, there was no suggestion of the feature that "each tube end is removably joined to a respective one of said inflatable containers in a sealed manner by an elastic ring disposed around a neck of the inflatable container" of claim 1. The statement that "a single operator can operate multiple nozzles at the same time" (paragraph [0028] of D18) did not mean that a balloon was attached to each nozzle in order to simultaneously fill all the balloons.

In order to solve the further alleged problem of saving time for sealing the balloons, the person skilled in the art would have considered the teaching of D18 itself and used the disclosed balloon ties and ribbons.

Therefore, starting from D18, the person skilled in the art would have no incentive to modify the teaching of D18 in the manner proposed by the appellant. Furthermore, there was no suggestion or hint that would lead them to the claimed subject matter.

The appellant's allegation that the person skilled in the art could have used their common general knowledge to apply elastic rings around the nozzle and balloon necks was based on an ex post facto approach.

D2 disclosed the use of a free-standing cylindrical inflation body 6 through which an inflatable bag 2 was poked by a push rod 12. An elastic ring 11 was twisted to several loops around the neck of the balloon before it was filled with air or helium.

The teaching of D2 was not applicable to that of D18 since it was not clear how the balloons of D18 could be placed through the nozzles. Contrary to the appellant's allegation, the person skilled in the art would not select only the feature of the elastic rings from the teaching of D2 since they would not arbitrarily cherry-pick isolated features from the description without considering the teaching as a whole.

As such, a combination of D18 with that of D2 would not lead the person skilled in the art to the subject-matter of claim 1.

Hence, the claimed subject-matter was inventive starting from D18.

Inventive step starting from D16

The subject-matter of claims 1 and 9 did not lack an inventive step over D16 in combination with the common general knowledge or any of D2, D30, D32 or D38.

D16 was directed to preventing detachment of the balloons from the plug extensions of the arm. It did not disclose that the elastic rings were configured to each slide with the corresponding balloon and to seal them upon removal from the post. In fact, D16 rather taught away from detaching the balloons by providing additional mechanisms for enhanced engagement (column 8, lines 60 to 67). Hence, D16 was not a suitable starting point, and the person skilled in the art would not combine the teaching of D16 with that of any of D2, D30, D32 or D38.

Inventive step starting from D31

D31 could not be treated as the closest prior art as it did not belong to the same or a closely related technical field as the subject-matter of claims 1 and 9 and was not directed to a similar purpose or effect.

The combination of the teaching of D31 with that of D4 would not result in the subject-matter of claims 1 or 9 as none of these documents disclosed or suggested a housing comprising an opening at a first end and a plurality of holes at the second end, and a plurality of hollow tubes, wherein each hollow tube was attached to a respective hole of said plurality of holes.

Hence, the subject-matter of claims 1 and 9 involved an inventive step in view of D31 in combination with the common general knowledge or D4.

Request for amendment of minutes of oral proceedings

The respondent did not file any submissions as to this issue.