T 2480/11 16-11-2016

1. Applicable text of the EPC

It is noted that the revised version of the Convention (EPC 2000) does not apply to European patent applications pending at the time of its entry into force (13 December 2007), unless otherwise provided. In this decision, where Articles or Rules of the former version of the EPC apply, their citation is followed by the indication "1973".

2. Admissibility

The appeal meets the requirements of Articles 106 to 108 EPC and Rule 99 EPC. It is thus admissible.

3. Clarity - Article 84 EPC 1973

3.1 The subject-matter of claim 1 according to the appellant's sole request is not clearly defined contrary to the requirements of Article 84 EPC 1973.

The terms "fixed channel configuration information", "arbitrary channel information", "fixed output channel" and "arbitrary output channel" have no recognised meaning in the field of audio coding and have also not been defined in claim 1 so that it is impossible for the skilled reader to identify from the wording of the claim alone the matter for which protection is sought.

3.2 The appellant contested the view expressed by the Board. It was, in particular, stressed that the description provided sufficient information regarding the meaning of the terms objected to by the Board. Particular reference was made to Figure 4 and the corresponding passage of the description. Moreover, it was a generally established principle resulting from the case law of the boards of appeal that a patent had to be construed by a mind willing to understand, not a mind desirous of misunderstanding (cf. T 190/99). The application of this principle to the present case would have led the skilled person to understand the claimed definitions.

3.3 The Board is not convinced by the arguments put forward by the appellant.

3.3.1 The need for a reference to the description and drawings in order for the skilled reader to make technical sense of the wording of claim 1 confirms that the subject-matter of claim 1 is not clear from its wording alone. In situations where the terms used in a claim have no recognised meaning or have a meaning which differs from their usual understanding, the requirement of clarity of Article 84 EPC 1973 implies that the claims be drafted so as to make sure that each term employed be given its intended significance. This requirement implies that the claims reproduce the definitions of the terms used as it results from the description or, in the absence of such definitions, any information derivable therefrom useful for the understanding of the claims.

As already stated in previous decisions of the present Board (in different compositions), "The Board is aware of the jurisprudence which acknowledges that an exception to this principle may exist in situations in which a patent description would provide unambiguous definitions of certain terms and would also make clear that such definitions apply throughout the complete application, so that, when interpreting the wording of claims, the patent specification would constitute its own dictionary" (cf. T 1271/05, point 4.3, not published; T 1281/06, point 2.1, not published).

Under the present circumstances, however, the indications contained in the section of the description extending from page 20, line 23 to page 34, line 7, corresponding to the section "Channel Division" in the published description, do not appear to contain any definitions of the terms of the claims objected to. As a matter of fact, this section of the description is in itself too ambiguous and fuzzy in order to derive any clear teaching regarding the terms employed.

While it is acknowledged that the paragraph on page 22 lines 11 to 16 clarifies that the notion of "fixed channel configuration information" relates to the notion of "basic channel configuration information" employed in the previous paragraphs of the description, a certain ambiguity results from the further indication in the same paragraph that the "fixed output channel" refers to the multiple channels "created by" the fixed channel configuration information. The Board fails namely to understand how channels may be created from information.

A further ambiguity results from the inherent contradiction in the paragraph of the description preceding the paragraph referred to above which reads: "One or more channel configuration information is used as the above-mentioned basic channel configuration information. Particularly, the basic channel configuration information indicates a single channel configuration information selected from among several channel configuration information." The reference to a plurality of channel configuration information, as it results from the use of the expression "one or more", appears to contradict the very fact that this information indicates a "single channel configuration". The Board further fails to understand how a plurality of channel configuration information would be used in the decoding process. This is particularly true, if the fixed channel configuration information contains data which permit to identify the number of input channels on the encoding side, the number of channels used for transmission of the downn-mixed signals and, finally, the number of output channels on the decoding side, as suggested, for example, by the indications on page 23, lines 1-9, of the description.

3.3.2 As emphasized by the appellant during the oral proceedings, the patent had to be construed by a mind willing to understand.

This principle is often relied on to exclude interpretations of the claims which are artificial or at odd with the teaching of the application or patent as a whole. However, it is also relied on this principle as a subsidiary principle of interpretation in situations where the general rules of interpretation referred to in the previous section fail in providing the skilled reader with a clear teaching of the claimed subject-matter.

Under the present circumstances, the application of this principle would imply that the skilled reader would attempt, despite the unclear wording of claim 1, to make sense of the terms used in claim 1 so that the claimed method as a whole be technically meaningful. It could therefore be argued, in favour of the appellant, that the skilled person might have indeed associated the information relating to the complete encoding/decoding chain with the notion of "fixed channel configuration information". Concretely, this information is, for example, represented in the form "5-2-5" to identify a structure where six input channels are down-mixed and transmitted on two channels in order to be then recombined in six output channels (cf. description, page 23, lines 3-9). Similarly, the skilled person might have possibly associated the notion of "arbitrary channel configuration information" with a sequence of "0" and "1" of the kind "1100001001..." (cf. description, page 27, lines 4-6) to define the division identifiers applicable to the different nodes. The skilled person might have then, in an attempt to make sense of the claim's wording, construed the step of "generating a fixed output channel corresponding to a predetermined output channel using the fixed channel configuration information", as the step of generating all the output channels as specified by the reference to the "fixed channel configuration information". In the context of the example cited above of a "5-2-5" configuration, said step would then correspond to the generation of 6, i.e. 5+1, output channels. This interpretation would indeed be in line with the definition of the output channels as it results from the statement in the description on page 22, lines 11-16. Any interpretation seeking to equate said generating step with the down-mixing step would be excluded, since claim 1 explicitly recites that the signal that has been received includes a down-mixed signal, i.e. a signal transmitted on two channels.

At that point, however, the skilled person would fail in the attempt to make sense of the claimed subject-matter. The step in claim 1 of "generating an arbitrary output channel using the fixed output channel and the arbitrary channel configuration information" wherein "the arbitrary channel configuration information is used to extend the number of channels of the fixed output channel" would namely imply that some other processing is taking place after that the output channels have been generated. This interpretation would, however, be at odd with the teaching of the present application so that the skilled person would still fail to understand the claimed subject-matter.

3.3.3 In the course of the oral proceedings, the appellant objected that the method actually claimed was a fair reproduction of the process disclosed with regard to Figure 4 and the corresponding section of the description. In this respect, the appellant indicated that the expression "arbitrary output channel (y)" on page 28, line 11 of the published version of the application was the result of a "minor typographical or translation error". A new page 28 had therefore been filed where the erroneous expression was replaced by "fixed output channel (y)" and where the further expression "another arbitrary output channel (z)" was replaced by "an arbitrary output channel (z)".

The Board notes, however, that an interpretation of claim 1 in the light of the embodiment of Figure 4 and corresponding corrected section of the description would directly contradict the indications provided on page 22 as to the meaning of the term "fixed output channel". Moreover, even if the skilled reader had attempted to read the claim in the light of the diagram of Figure 4, he would still have had major difficulties in assessing the meaning of the first step of generating a fixed output channel corresponding to a predetermined output channel using the fixed channel configuration information. It would, concretely, be unclear under this assumption how, for example, the knowledge of a structure of the kind "5-2-5", as identified by the fixed channel configuration information, could contribute in the definition of vector (y) in Figure 4. Under this assumption, vector (x), which corresponds to the down-mixed signals, would be two dimensional and vector (z) would have 6 dimensions. The knowledge of these two parameters is, however, not sufficient to define the dimensions of vector (y) and which relationship should exist between vector (y) and the fixed channel configuration. For these reasons, the skilled person would be at a loss when seeking to implement the step of "generating a fixed channel corresponding to a predetermined output channel using the fixed channel configuration information".

The Board further observes that the embodiment of Figure 4 with its two matrices m1 and m2 suggests that the presence of vector (y) is de facto superfluous since it would be directly possible to obtain vector (z) from a transformation of vector (x) by a matrix resulting from the combination of the two matrices. The introduction of vector (y) would only be justified if at least a component of said vector were to be submitted to a particular nonlinear processing. This situation further increases the confusion which arises when attempting to construe the claim in a meaningful way in the light of Figure 4.

3.3.4 The applicant itself appears to have had difficulties in interpreting the claimed subject-matter since its first reaction, when confronted with the discrepancy in the passage on page 28 of the description regarding Figure 4 during the oral proceedings before the examining division, was to state that said embodiment was to be disregarded. It was only when filing the statement of grounds of appeal that the appellant argued that an obvious mistake had been done.

All in all, the skilled person fails in his attempts to make technical sense of the wording of claim 1. Hence, claim 1 lacks clarity and does not meet the requirements of Article 84 EPC 1973.