T 1016/08 () of 26.11.2009

Summary of Facts and Submissions

I. The Appellant (Opponent) lodged an appeal, received 30 May 2008, against the decision of the Opposition Division posted 4 April 2008 to reject the opposition, and simultaneously paid the appeal fee. The statement setting out the grounds was received 14 August 2008.

Opposition was filed against the patent as a whole and based among other grounds on Article 100 (a) together with Articles 52(1) and 56 EPC 1973, for lack of inventive step.

The Opposition Division held that the grounds for opposition under Article 100 EPC 1973 did not prejudice the maintenance of the patent as granted having regard in particular to the following documents:

D1: US-A-5 416 417

D3: US-A-5 704 311

D8: K. Barth et al: "Influence of different milking intervals on electrical conductivity before alveolar milk ejection in cows", Milchwissenschaft 55 (7), 2000, pp.363-365

D9: EP-A-0 764 403

II. During the proceedings the Board considered the following further document:

D22: EP-A-0 091 892

III. The Appellant (Opponent) requests that the decision under appeal be set aside and the patent be revoked in its entirety.

The Respondent (Proprietor) requests that the appeal be dismissed and the patent maintained as granted.

IV. Oral proceedings in appeal were duly held before this Board on 26 November 2009.

V. The wording of claim 1 as granted is as follows:

"A method of collecting measurement data during automatically milking a dairy animal by means of a device provided with a milking box (19) with a milking robot (20), said method comprising the steps of:

determining the period between two successive milking runs of the dairy animal,

measuring a value of a variable in relation to the dairy animal,

issuing a measurement signal indicative of the measured value,

admitting a dairy animal to the milking box (19) in dependence on an admission criterion,

repeatedly varying the admission criterion in such a manner that periods with different values are obtained,

obtaining automatically measurement signals belonging to the various periods, and

storing the measurement signals per period in a memory,

characterized in that the method comprises the step of measuring during the entire course of the milking run the value of the milk variable for obtaining a measurement pattern of the milk variable, the step of storing the measurement pattern in a memory, and the step of determining the average of a measurement pattern of a milk variable belonging to the same period."

VI. The Appellant argued as follows :

Starting from D1 two main sets of differences can be identified. The first of these concerns automatic milking, which is a routine development. Measuring conductivity for different intervals for a "like-for-like" comparison is a standard way of realizing D8's instruction to take into account interval. The admission criterion is then varied to produce the required different intervals either as common knowledge, or in obvious application of D9's teaching.

An alternative starting point is D3, showing automatic milking with admission criterion (minimum milking interval) and recording of intervals. The sole differences are repeated varying of the admission criterion and the recording of conductivity against milking interval. This again realizes D8's instruction in standard "like-for-like" fashion, while applying criterion variation from common knowledge or in the light of D9. In any case in D3 cows turn up at different intervals, so that actively varying the criterion results in the same database and thus adds nothing.

VII. The Respondent argued as follows :

With regard to D1, the sets of differences cannot simply be treated separately, but are aspects of one invention. While D1 and D9 are unrelated and thus unlikely to be combined, D8 may identify the problem addressed by the patent, but it does not offer any particular solution, much less active variation of the admission criterion.

Actively varying the admission criterion is also a central difference over D3 as starting point. It ensures a sufficient spread of intervals to produce a reliable analysis, in particular in view of cows' habits to present themselves at regular times for milking. This measure thus goes beyond any obvious implementation of D8's teaching, and is not simply common general knowledge. It is also not suggested by D9, which changes criteria across a herd but not for individual cows.

Reasons for the Decision

1. The appeal is admissible.

2. Background

The invention concerns a method for collecting measurement data during automatic milking by a milking robot in a milking box. The main idea is to record values of a milking variable measured during a milking run for different milking intervals - the period between successive milkings. To produce the different intervals the criterion for admitting a cow into the milking box is repeatedly varied. Measurement data - referred to in the claim as a "measurement pattern" - is stored per period/interval and averaging carried out.

This idea is based on the realization that various parameters that are in some way indicative of the quality of a cow's milk or of its health are known to vary with the milking interval. By collecting data for different intervals this interval dependency can be recorded and then taken into account in deciding whether or not a given cow's milk should be processed. That decision will be more accurate, cf. specification paragraph [0004].

3. Inventive Step

3.1 In that D3 is also concerned with the capture of milking data in automatic milking, the Board considers it a good starting point for assessing inventive step. Column 6, lines 7 to 58, in conjunction with figure 1 provide details of the automatic milking system with milking robot 8 in milking box 7. Cows report for milking and the current milking interval is recorded in a given cow's file when it enters the milking area, column 6, lines 36 to 46. As follows from column 3, lines 36 to 37, a minimum interval criterion is applied for milking. Finally, D3, in column 8, lines 17 to 38, and column 2, lines 38 to 50, describes sensing of milk conductivity and transmission of the sensed signals to a computer for comparison with an average over previous milking runs to determine whether or not the relevant animal has mastitis and countermeasures need to be taken.

3.2 Leaving aside the question of what is exactly meant by "measurement pattern" in granted claim 1 and whether or not D3 implicitly discloses such a pattern, the method of claim 1 in any case differs from D3 in the following steps :

a) storing the measured data per period, and

b) repeatedly varying the admission criterion to obtain periods of different duration.

D3 undisputedly does not disclose a differentiation of the measured conductivity with respect to milking interval, nor is there any suggestion that the minimum milking interval criterion should be varied.

3.3 Difference a) per se allows the interval dependent variation in the conductivity of the cow's milk as milking variable to be recorded. It can then be factored into a decision on further processing of that milk, as mentioned above in reference to specification paragraph [0004].

Difference b) ensures that measurements will be made for a sufficiently wide spread of interval values to more reliably determine the interval dependency of the conductivity of the cow's milk. In D3 a cow can report at any time after the minimum interval (up to a certain maximum determined by its average, column 6, lines 54 to 58), but this does not guarantee a sufficiently representative or even distribution of interval values. For example, in D3 the use of an individual's average interval and the statistical spread therein in order to determine that animal's maximum interval, (column 6, lines 49 to 54), suggest that its reporting activity is not simply random. Vis-à-vis such a non-random distribution, differing feature b) thus results in a different, better data set.

3.4 In the light of the above, the objective technical problem addressed by features a) and b) can be formulated as how to reliably take into account the effect of the interval dependency in the measurement of a milking variable such as conductivity in an automatic milking system as in D3.

3.5 The effect of interval dependency on milking variables is per se well-known. In particular, research paper D8 reporting on the measured influence of milking interval on conductivity, in its abstract concludes "that MI [milking interval] has to be taken into consideration if milking times are not as fixed as in conventional milking systems". It specifically mentions as application "specific control of udder health by EC measurement in fore milk of herds with automatic systems".

D8 may recognize the underlying problem but itself offers no solution. One obvious, common knowledge way of doing so involves, as a first step, measuring the actual dependency, by measuring conductivity for a number of different interval values. In the case of D3 this is relatively straightforward as it already offers different interval values as explained above. All the skilled person needs to do, is to modify the system so that for the various recorded intervals it also logs the measured conductivity values and stores them together, corresponding to feature a) of claim 1.

3.6 It does however not belong to the skilled person's common general knowledge to improve the reliability of his measurement by actively varying the admission criterion so as to ensure a better spread of interval values. This measure goes beyond commonly known ways of increasing accuracy and reliability. It rather rests on the realization that the spread offered by an automatic milking system such as that of D3 may not be ideal for reliably determining the interval dependency. This may require knowledge of milking behaviour, but more importantly it requires the recognition of the influence a non-ideal spread may have on the accuracy of the measured interval dependency. In the Board's opinion the latter in particular lies outside the common skills and knowledge of the skilled person in the present field, an agricultural engineer specializing in the design of automatic milking systems.

Nor does any of the remaining prior art suggest a repeated variation to produced a range of intervals. D9, see its abstract, may describe calculation of different admission criterion for different individuals (depending on their relative yield), this however results in a spread of intervals across the herd. For a given animal the spread will be limited, with high producers milking at predominantly shorter intervals, and low producers at mainly longer intervals. In granted claim 1 however, the repeated variation step can only meaningfully apply to a given animal; it is the interval dependency of the milking variable for the animal that has been milked that is crucial in deciding whether or not that particular milk is to be processed, as will be appreciated by the skilled person. Adoption of D9's teaching in an automatic milking system as in D3, which in obvious manner records interval dependency of conductivity as suggested by D8, might thus result in different intervals for different animals. It will however not result in repeated variation of the admission criterion, and thus a spread of intervals, for the same animal, as effectively required by claim 1 as granted.

3.7 The Board concludes that obvious combination of D3 with D8 and common general knowledge, or alternatively with D8 and D9, does not result in the method of granted claim 1.

3.8 It reaches the same conclusion and on the same grounds if it departs from D1 as closest prior art. It is common ground that D1 does not disclose features a) and b). Nor, it is generally agreed, does it disclose the features of automatic milking (milking robot in a milking box, admission criteria). Automatic milking with a milking robot in a milking box is standard, as evidenced inter alia by D22, while the automatic recording of measured conductivity together with interval - feature a) - is an obvious way of carrying out D8's suggestion, see section 3.5 above. It is feature b) however that lifts the method of granted claim 1 above a mere obvious realization of D8's teaching, for the reasons indicated in section 3.6 above. That measure is neither common knowledge, nor known from D9; nor does D1 itself contain any hint that might render it obvious.

4. Conclusion

In the light of the above the Board holds that the opposition ground raised under Article 100(a) in combination with Articles 52(1) and 56 EPC does not prejudice maintenance of the patent in its granted form.

ORDER

For these reasons it is decided that:

The appeal is dismissed.