T 1860/11 (3D Motion User Interface/HTC) 14-06-2018

1. Main requests

1.1 The invention underlying both applications relates to user interfaces. When filing the present applications, the appellant chose to disclose the invention by means of a conceptual metaphor, a so-called "3D motion user interface" (610 in figure 6). The relevant disclosure is very brief and is limited to paragraphs [0036] and [0049] of the description and figure 6. Figure 6 depicts as a "3D motion user interface" an abstract three-dimensional object, seemingly a cube, and three axes of rotation, but no user interfaces. The only link between this abstract conceptual metaphor and user interfaces is the statement in paragraphs [0036] and [0049] that the user interfaces are located on its surfaces. The user interfaces may be on adjacent surfaces, which seems to be the case in claim 1 of the main requests. It is nowhere described, let alone shown in any of the figures, how the user interfaces are placed on the surfaces of the "3D motion user interface". Nor is it disclosed how the "3D motion user interface" depicted in figure 6 is displayed on the display of an actual electronic device.

1.2 In its preliminary opinion the board objected that an application relying to such an extent on abstract conceptual metaphors, without making it clear how these metaphors should be given a concrete technical implementation, was unlikely to be regarded as disclosing the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art (Article 83 EPC). The board further noted that the description does not describe in detail at least one way of carrying out the invention claimed using examples (Rule 42(1)(e) EPC).

1.3 The appellant claimed in its reply to the summons, and reiterated at the oral proceedings, that each surface of the "3D motion user interface" carries exactly one user interface filling the entire display area of the touch display, and that the dragging operation of the invention is identical to a 2D projection of a rotation of a cube or cuboid caused by tipping or dragging the cube or cuboid.

1.4 This does not convince the board, as these and other details that the skilled person would need to carry out the invention are not disclosed in the application, not even the number of user interfaces on one surface of the so-called "3D motion user interface". The appellant does not dispute that the application does not explicitly state that one surface carries exactly one user interface, but claims this to be implicit in the disclosure that the user interface activated later is located on an adjacent surface. When asked how this could be reconciled with figure 4, which seemingly depicts four user interfaces next to each other, the appellant submitted that figure 4 is not related to the invention. In the board's judgement, the fact that the application contains figures of user interfaces which do not fit the explanation of the conceptual metaphor in figure 6 given by the appellant only confirms its doubts with respect to the clarity and completeness of the disclosure of this metaphor.

1.5 Therefore the main requests are not allowable, as the invention is not disclosed in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art (Article 83 EPC).

2. First auxiliary requests

2.1 The first auxiliary requests in both appeals were filed in reply to the summons, and thus after the appellant had filed its grounds of appeal, and may thus be admitted at the board's discretion (Article 13(1) RPBA).

2.2 Among the criteria used by the boards of appeal to decide on the admissibility of such requests is whether the requests address still outstanding objections (see Case Law of the Boards of Appeal, 8th edition 2016, IV.E.4.4.1).

2.3 The appellant submitted at the oral proceedings that the invention claimed in amended claim 1 of the first auxiliary requests no longer comprised the feature of the user interfaces being "adjacent". Hence the sufficiency of the disclosure of figure 6 and paragraphs [0036] and [0049], i.e. the parts of the application disclosing user interfaces located on adjacent surfaces of a "3D motion user interface", had no bearing on whether the "invention" was disclosed in a manner sufficiently clear and complete for it to be carried out by the person skilled in the art, as required by Article 83 EPC, and could be ignored. The appellant argued that the first auxiliary requests thus addressed still outstanding objections and should therefore be admitted.

2.4 As a matter of principle, the board cannot accept that a deficiency in disclosure concerning the conceptual fundamentals of the invention can ever be remedied without violating the restrictions codified in Article 123(2) EPC. The remedy sought by the appellant does not go so far, but is effectively attempting to abandon altogether the conceptual fundamentals of the invention, when the sufficiency of their disclosure fails to satisfy the board. This is not only unacceptable, but would also clearly not overcome the outstanding objections of the board, as the amended claim still involves "switching" and "dragging" user interfaces. The requirement of sufficiency of disclosure can clearly not be met for such transitions of the user interfaces of the invention if the conceptual fundamentals and hence the topological relationships of the user interfaces are themselves insufficiently disclosed.

2.5 As claim 1 does not overcome still outstanding objections, the first auxiliary requests in both appeals are clearly not allowable. Therefore the board exercises its discretion under Article 13(1) RPBA not to admit them into the appeal proceedings.