T 0811/06 () of 11.5.2010

Summary of Facts and Submissions

I. The appeal is directed against the decision to refuse European patent application 00 986 480.2, published as WO 01/45418 A1.

II. The application was refused on the ground that the subject-matter of claim 1 according to all requests filed during oral proceedings on 11 October 2005 lacked an inventive step starting from the prior art disclosed in:

D2: US 5,835,493 A.

III. The appellant requested in writing that the decision under appeal be set aside and a patent be granted on the basis of the main and auxiliary requests on file, i.e. in the version filed on 11 October 2005. The appellant further requested reimbursement of the appeal fee arguing that the examining division had committed a substantial procedural violation, and requested oral proceedings in lieu of any adverse decision.

IV. In an annex to the summons to oral proceedings the board expressed the preliminary opinion that the subject-matter of claim 1 according to the main request lacked an inventive step over D2 and common general knowledge, that the subject-matter of claim 1 according to the auxiliary request lacked novelty over D2, and that the board could not see a substantial procedural violation that would justify reimbursement of the appeal fee.

V. In a letter dated 11 March 2010 the appellant informed the board that he would not be represented at the oral proceedings and requested a decision according to the state of the file.

VI. Oral proceedings took place on 11 May 2010.

VII. Claim 1 according to the main request reads as follows.

"An input processing device for use in a remultiplexing module (100) that processes input packet data, comprising:

an input interface (118) that receives the input packet data;

an input processor (120) coupled to the input interface (118) to receive input packet data therefrom and write data to a packet buffer;

a packet identifier table (122) coupled to the input processor; and

characterised in that the packet identifier table (122) is divided into two separate tables (300, 322) that act interchangeably as an active packet identifier table and a pending packet identifier table, the current active packet identifier table containing values for use by the input processor (120) to select packets for storage in an input packet data stream and the current pending table containing values that can be modified by a host processor (114) while the active table is being used by the input processor, the statuses of the two tables being switchable to turn the pending table into the current active table and the active table into the current pending table."

VIII. Claim 1 according to the auxiliary request reads as follows.

"An input processing device for use in a remultiplexing module (100) that processes input packet data, comprising:

a plurality of input interfaces (118) each of which receives one of a corresponding plurality of data transport streams, each of which contains input packet data;

a corresponding plurality of input processors (120) each coupled to a respective one of the input interfaces (118) to receive input packet data from a respective data transport stream; and

a corresponding plurality of packet identifier tables (122) each of which is coupled to a respective input processor (120);

characterised by at least one of the plurality of input processors (120) being arranged to extract packet data from the respective data transport stream to be output in at least one output data stream and being further arranged to write said extracted packet data to a respective packet buffer (104)."

IX. The reasoning of lack of inventive step in the decision under appeal may be summarised as follows. There are many examples in the prior art, in many different fields, of the use of "ping-pong" memory architectures, for example by using different memory areas in computers to provide instantaneous screen changes. Thus the features of claim 1 not anticipated by D2 represent an obvious use of a well-known technique, the advantages of which technique making it quite suited in the context of the apparatus of D2.

X. The appellant's arguments may be summarised as follows:

- The RAM and the buffer according to D2 do not store active and pending tables according to the present invention. There is also no evidence as to how PID values stored in the RAM or the buffer according to D2 are updated and overwritten to form a table.

- The common general knowledge of ping-pong memory architectures is from a field remote from the field of MPEG data multiplexing. Arriving at the two-part table according to the invention would thus result from an ex-post facto analysis, which is not allowable.

- D2 does not address the inability at the priority date of the application to multiplex multiple output streams from multiple input streams, so that the provision of an architecture suitable for multiplexing such multiple output streams was inventive.

- The examining division failed to produce documentary evidence of common general knowledge relating to double buffering and ping-pong architecture in the context of look-up tables, which was disputed by the appellant. This deprived the appellant of the opportunity to present comments in relation to anything other than a bald assertion of "common general knowledge" and prevented him to formulate a cogent response. This also led to an insufficiently reasoned decision within the meaning of Rule 68(2) EPC 1973.

Reasons for the Decision

1. The appeal is admissible.

2. Main request

2.1 It is uncontested that a device according to the preamble of claim 1 is known from D2, where the packet identifier (PID) table is stored in PID RAM 220 and downloaded into buffer 222 (see figure 3), which corresponds to the active identifier table according to the present invention. The table is used to identify and select input packets in the transport stream, which are written ("transferred") to an output buffer (228) depending on the result of the comparison of their PID values with those stored in the active table (see D2, column 7, lines 1 to 15; column 8, lines 1 to 10 and column 13, line 55 to column 14, line 23).

2.2 D2 encompasses the use of a single (active) table. The provision of two separate and interchangeably acting (active and pending) tables according to claim 1 is not known from D2.

2.3 The technical problem to be solved by the provision of such active and pending tables is to allow dynamic reconfiguration of the device without interrupting the operation of the input processor. The content of the pending table is modified whereas the active table is used for packet selection. The host processor may then choose to put the pending table into effect simply by modifying the value of a control bit, thereby instantaneously switching the statuses of the two tables (see paragraphs [0017] and [0019] of the description in the present application).

2.4 The board is satisfied that "ping-pong" memory architectures were commonly known for increasing the throughput of data streams in different technical fields. As mentioned by the examining division, one notable example could be found in computer graphics, where an instantaneous screen change is achieved by changing the address of the memory area from which the screen data is fetched. More generally, "ping-pong" denominates an architecture allowing data to be written to a "ping" memory while data is read from a separate "pong" memory, prior to interchanging the role of the "ping" and "pong" memories.

2.5 D2 relates to the same technical field of MPEG remultiplexers as the present invention, where both constraints about data throughput and the need for regular reconfiguration have to be taken into account. The skilled person starting from D2 and confronted with the above problem (see point 2.3) would therefore have looked for a reconfiguration scheme preserving throughput as much as possible.

2.6 The raison d'être of a ping-pong architecture is to instantaneously allow two memory areas to be interchanged with essentially no interruption in the operation. Therefore the person skilled in the art, in view of his common general knowledge, would have considered modifying the device according to D2 and implementing a ping-pong scheme so as not to affect the operation of the device during reconfiguration. As a result, changing the statuses of the active and pending tables as specified in the characterising portion of claim 1, resulting in replacing an active table by a previously downloaded pending table, does not show an inventive step.

2.7 The technical field of computer graphics may be remote from the field of MPEG data remultiplexing. However, it was mentioned by the examining division merely as an example and the technical problem with which the skilled person was confronted, starting from D2, relates to dynamic reconfiguration of data stored in a buffer. This is a problem which may occur in many areas of digital data processing, for instance also in the technical field of computer graphics. Ping-pong memory architectures are so widely known that the skilled person would have contemplated their use in any field where a fast memory update is desirable, thus also in MPEG remultiplexers with reconfigurable PID table(s).

2.8 As a result, the board judges that the subject-matter of claim 1 according to the main request lacks an inventive step over D2 and the common general knowledge of the skilled person.

3. Auxiliary request

3.1 Claim 1 of the auxiliary request is directed to a device with a plurality of input processors. It is uncontested that a device according to the preamble of claim 1 was known from D2. The remultiplexer according to D2 assembles one or more input transport streams, using one or more modules according to figure 3, into one single output transport stream (see for instance column 1, lines 15 to 24 and column 8, lines 39 to 43).

3.2 The characterising portion of claim 1 sets out that at least one input processor is arranged to extract packet data from the respective data transport stream to be output in at least one output data stream and to write said extracted packet data to a respective packet buffer. Claim 1 thus essentially sets out the operation within (at least) one input processor, which is the same as in D2, in which the data is written in output buffer (228) to be assembled and outputted in (at least) one output data stream.

According to the description (see for instance paragraph [0024]), the generation of multiple output data streams is a feature of the output processor according to figure 4. Claim 1 does not contain a corresponding feature. Claim 1 also does not set out features, neither explicitly nor implicitly, which could determine or influence the routing of packet data to different output streams in an output processor. Thus no feature of the input processing device according to claim 1 makes it particularly suitable for a use with multiple output streams, contrary to the appellant's contention. The board thus disagrees with the appellant arguing that the present invention is distinguished from the prior art in that it is suitable to multiplex multiple output streams.

3.3 As a result, all the features of the input processing device of claim 1 according to the auxiliary request being disclosed in D2, its subject-matter lacks novelty over D2.

4. Alleged substantial procedural violation

4.1 The examining division asserted in the refusal of claim 1 of the main request that the division of a memory in two interchangeable separate areas according to the characterising portion of claim 1 was known in many fields, for instance as a "ping-pong" memory architecture and was thus common general knowledge.

4.2 The appellant argues that the examining division, by not providing a prior art document in support of this assertion, failed to sufficiently reason its decision, and prevented him from formulating a cogent response. The question arises as to whether the behaviour of the examining division in the proceedings up to refusal deprived the applicant of the right to be heard (Article 113(1) EPC 1973), and whether the decision was sufficiently reasoned (Rule 68(2) EPC 1973).

4.3 Decision T 939/92 (OJ EPO 1996, 309) referred to by the appellant in the statement of grounds of appeal (followed for instance in T 1242/04, OJ EPO 2007, 421; see point 9.2 of the reasons) sets out that Article 54(2) EPC 1973 does not limit the state of the art to written disclosure in specific documents. Rather it defines it as including all other ways ("in any other way") by which technical subject-matter can be made available to the public. Therefore, the absence of a reference to a particular document does not mean that there is no state of the art, as this could reside solely in the relevant common general knowledge, which, again, may be in writing, i.e. in textbooks or the like, or be simply a part of the unwritten "mental furniture" of the notional "person skilled in the art".

It is true, and the board agrees with the appellant in this respect, that in the case of any dispute as to the extent of the relevant common general knowledge this, like any other fact under contention, has to be proved, for instance by documentary or oral evidence (see also T 329/04, not published in OJ, point 45 of the reasons).

4.4 According to the minutes of the oral proceedings held before the examining division, the applicant accepted that conventional structures known as "double-buffering" or "ping-pong" memory architecture might be used to increase the throughput of data streams. The board thus deduces that the applicant did not dispute that a ping-pong memory architecture and its benefit were common general knowledge. By contrast, the appellant stated that he was unaware of an example in the context of look-up tables (see the paragraph bridging pages 1 and 2 of the minutes).

4.5 Claim 1 of the refused main request sets out separate (active and pending) tables for selecting packets and does not expressly set out look-up tables. The last paragraph on page 4 of the decision under appeal refers to examples of ping-pong memory architectures with separate memory areas in general and also does not specifically refer to the use of such areas as look-up tables.

4.6 The device of D2 uses a memory containing a single table (operating indeed in practice as a look-up table) to select data packets (see also point 2.1 above). This was not contested by the appellant. The question whether a person skilled in the art would have combined the teaching of D2 with the (uncontested) common general knowledge of a ping-pong architecture having two interchangeable memory areas is a matter of judgment. Documentary evidence for the feature of ping-pong architecture "in the context of look-up tables" was thus not necessary, and the examining division was not required to provide documentary evidence for their argumentation.

4.7 In view of the above, and since the reasoning in the decision only reflects issues which have been debated in the oral proceedings (which the appellant did not contest), the appellant was not deprived of an opportunity to present comments on the issues relevant to the outcome of the case in the proceedings up to refusal (cf. Article 113(1) EPC 1973).

4.8 Rule 68(2), first sentence, EPC 1973 aims to put the appellant in a position to ascertain the reasons for the decision in order to defend his rights, in particular by setting out grounds of appeal, and the board to exercise its power of review of the legality of the decision. As explained in the foregoing, the reasoning in the decision under appeal (see in particular the last paragraph on page 4) built on facts disclosed in D2 and uncontested common general knowledge to conclude that the subject-matter of claim 1 lacked an inventive step. The argument qualified by the appellant as a bold assertion of "common general knowledge" did not prevent him from understanding the reasoning in the decision and from formulating counter-arguments in the statement of grounds of appeal. Therefore, the decision is also considered to be sufficiently reasoned.

4.9 As a result, the examining division did not commit a substantial procedural violation and the appellant's request for reimbursement of the appeal fee is not allowable.

5. In conclusion, none of the appellant's requests being allowable, the appeal must be dismissed.

ORDER

For these reasons it is decided that:

The appeal is dismissed.