T 1574/07 () of 5.3.2009

Summary of Facts and Submissions

I. European patent application 03 811 241.3 (publication No. WO 2004/045019) was refused by a decision of the examining division dispatched on 20 April 2007, on the ground of lack of novelty of the subject-matter of independent claims 1 and 9 then on file.

II. The applicant lodged an appeal against the decision on 15 June 2007. On 19 June 2007 the prescribed fee was paid. A statement of grounds of appeal was filed on 20 August 2007.

III. On 24 October 2008 the appellant was summoned to oral proceedings to take place on 5 March 2009.

In an annex accompanying the summons pursuant to Article 15(1) RPBA the board commented on the issues to be addressed during the oral proceedings. Apart from pointing to problems regarding novelty and inventive step the board drew the appellant's attention to deficiencies concerning added subject-matter (Article 123(2) EPC) and clarity of wording (Article 84 EPC 1973).

IV. The appellant did not respond to the board's comments but informed the board by facsimile of 20 January 2009 that it would not be present at the oral proceedings.

V. Oral proceedings were held on 5 March 2009 in the absence of the appellant.

VI. The appellant has requested in writing that the decision under appeal be set aside and a patent be granted on the basis of amended claims 1 to 9 filed with the statement of grounds of appeal on 20 August 2007.

VII. Independent claims 1 and 9 of the appellant's request read as follows:

"1. An antenna comprising:

a ground plane;

a radiating element (10; 43; 61; 72) spaced above said ground plane, said radiating element comprising an essentially linear edge (13, 73);

a generally L-shaped slot (11; 41; 71; 101) having side walls formed in said radiating element, the slot having an open end (12; 70) located on said edge and having a closed end (21) located within said radiating element, said slot having a first portion that extends generally perpendicular to said edge and a second portion that extends generally parallel to said edge; and

a shorting post (15) connecting said radiating element to said ground plane;

characterized by

an extension (22; 42; 62-65; 74) of said radiating element within said slot and out of physical contact with said side walls, said extension having a first end (23) connected to said radiating element and located generally adjacent to said open end of said slot

and having a second end (34; 53; 64) located generally adjacent to said closed end of said slot, wherein said extension includes a first portion (24; 44; 62; 74) that extends through said first portion of said slot, and wherein said extension includes a second portion (26-33; 45-52; 63, 65) that extends through said second portion of said slot."

"9. A method of controlling the operating parameters of a planar antenna comprising the steps of:

providing a generally planar metal radiating element (10; 43; 61; 72) having an edge (13, 73);

providing a generally L-shaped slot (11; 41; 71; 101) within said radiating element;

providing that said slot include [sic !] side walls, an open slot-end (12; 70) that lies on said edge of said radiating element, and a closed slot-end (21) that lies within said radiating element, said slot having a first portion that extends generally perpendicular to said edge and a second portion that extends generally parallel to said edge;

providing a shorting post (15) connecting said radiating element to a ground plane;

characterized by

providing an extension (22; 42; 62-65; 74) of said radiating element within said slot and out of physical contact with said side walls, said extension having a first end (23) connected to said radiating element and located generally adjacent to said open end of said slot and having a second end (34; 53; 64) located generally adjacent to said closed end of said slot, wherein said extension includes a first portion (24; 44; 62; 74) that extends through said first portion of said slot, and wherein said extension includes a second portion (26-33; 45-52; 63, 65) that extends through said second portion of said slot."

Claims 2 to 8 are dependent claims, claims 2 and 3 of which read as follows:

"2. The antenna according to claim 1 wherein a portion of said extension (22; 42; 62-65; 74) is located in a space between said radiating element and said ground plane."

"3. The antenna according to claim 1 or 2 wherein said second end (34; 53; 64) of said extension is located in a space between said radiating element and said ground plane."

Reasons for the Decision

1. The appeal complies with the requirements of Articles 106 to 108 and Rule 64 EPC 1973 and is, therefore, admissible.

2. Amendments

2.1 In its comments annexed to the summons to oral proceedings, the board had drawn the appellant's attention to the fact that, although it would appear that claim 1 on file resulted from a combination of the features comprised in originally-filed claims 1, 3 and 10, no basis of disclosure was apparent for the resulting combinations of features according to dependent claims 2 to 6 and 8 as presently on file.

2.2 In fact, the originally filed claims do not provide a basis of disclosure for the subject-matter of present claim 1 in combination with the additional features of present claims 2 to 6 and 8, which list features arising from original claims 2, 4, 6, 15, 16 and 34, respectively, because no cross-reference exists in the originally-filed claims between original claim 10 (which has become part of present claim 1) and any of original claims 2, 4, 6, 15, 16 and 34. As regards the remainder of the originally-filed application documents, the board is also unable to identify therein antenna structures that embody in combination the various technical details claimed in present claims 2 to 6 and 8. For example, the description and drawings do not refer to an antenna with an extension of the planar radiating element within a slot, which extension would possess a portion or, more specifically, a second end that would be "located in a space between said radiating element and said ground plane", as is defined in present claims 2 and 3, respectively.

Moreover, the board had drawn the appellant's attention to the fact that a method of "controlling operating parameters of a planar antenna" combining all the features comprised in present claim 9 was neither the subject of any of the originally filed claims (the respective original method claims 36 to 42 do not refer to a slot "having a first portion that extends generally perpendicular to said edge and a second portion that extends generally parallel to said edge") nor was such a method described in the originally-filed description.

Therefore, the appellant's request on file comprises subject-matter which has not been disclosed in the originally-filed application documents.

2.3 The appellant did not present any arguments or explanations in support of the basis of disclosure.

2.4 The board has thus come to the conclusion that the appellant's sole request does not comply with the requirement of Article 123(2) EPC.

The appellant's request is therefore not allowable.

ORDER

For these reasons it is decided that:

The appeal is dismissed.