T 1483/09 () of 19.6.2013

Summary of Facts and Submissions

I. This is an appeal of the applicant against the decision of the examining division to refuse European patent application No. 05 743 963.0. The reason given for the refusal was that the subject-matter of the independent claims according to each of the requests then on file lacked novelty within the meaning of Article 54 EPC.

II. The following document of the state of the art cited during the procedure before the first instance is relevant for the present decision:

D1: US 2002/0057342 A1.

III. In the statement of grounds of appeal, dated 26 June 2009, the appellant requested that the decision under appeal be set aside and that a patent be granted on the basis of claims 1 to 25 according to the main request as filed with letter dated 5 March 2008, or alternatively on the basis of claims 1 to 24 according to the first auxiliary request as filed with the same letter, on the basis of claims 1 to 24 according to the second auxiliary request as filed with letter dated 30 April 2008, on the basis of claims 1 to 23 according to the third auxiliary request filed with letter dated 12 December 2008, or on the basis of claims 1 to 23 according to the fourth auxiliary request filed with the statement of grounds of appeal. Of these requests, all except the fourth auxiliary request were those which formed the basis of the decision under appeal.

In a communication accompanying a summons to oral proceedings, dated 13 March 2013, the board noted that the statement of grounds of appeal contained no arguments relating to the main request and the first and second auxiliary requests, and informed the appellant inter alia of its preliminary opinion that the subject-matter of independent claims 1 and 20 of the third auxiliary request and independent claim 20 according to the fourth auxiliary request lacked novelty with respect to D1.

Oral proceedings before the board took place on 19 June 2013, at which the appellant was not represented, as previously indicated by letter dated 17 May 2013.

IV. Claim 1 of the appellant's main request reads as follows:

"A system (2) for a structure comprising:

a server (10) including a first communication port (12), a second communication port (14) and a memory (16) having at least one digital image (18);

a plurality of first devices (4, 20, 22, 24), at least one of said first devices comprising a sensor (26) adapted to detect an event, and a first communication port (28) adapted to send the detected event (29) to the first communication port of said server; and

a second device (8; 178) including a second communication port (30) and a display (6),

wherein the second communication port of said server is structured to send one (31) of said at least one digital image to the second communication port of said second device responsive to receipt of said detected event at the first communication port of said server, and

wherein said second device is adapted to display said one of said at least one digital image on said display responsive to receipt thereof at the second communication port of said second device."

Claim 21 of the appellant's main request reads as follows:

"A method of displaying a digital image (18) responsive to an event of a system for a structure, said method comprising:

employing a server (10) including a memory (16) having at least one digital image (18);

employing a plurality of first devices (4, 20, 22, 24) associated with said server;

detecting an event (29) at one of said first devices and sending the detected event to said home system server;

responsive to said detecting an event sending one of said at least one digital image to a second device (8; 178); and

receiving said one of said at least one digital image at said second device and responsively displaying said one of said at least one digital image on a display (6) of said second device, in order to represent said detected event."

Claim 1 according to the appellant's first auxiliary request differs from that according to the main request by the deletion of the word "and" at the end of the penultimate paragraph and by the addition at the end of the claim of the following text:

"and wherein said server (10) is adapted to receive a message (29) and a corresponding digital image (40) from said at least one of said first devices (4, 20, 22, 24) at the first communication port (12) of said server (10), and to store said corresponding digital image as said one of said at least one digital image in the memory (16) of said server (10)."

Claim 20 according to the appellant's first auxiliary request is identical to claim 21 according to the main request.

Claim 1 according to the appellant's second auxiliary request is identical to that according to the main request.

Claim 21 according to the appellant's second auxiliary request differs from that according to the main request by the deletion of the word "and" at the end of the penultimate paragraph and by the addition at the end of the claim of the following text:

"and employing as one of said first devices a digital camera (4) including a communication port;

employing as another one of said first devices a sensor (22) including a communication port;

detecting said event with said sensor and responsively sending the detected event (29A) from the communication port of said sensor to said server;

receiving said detected event at said server and responsively sending a snapshot request (340) to the communication port of said digital camera;

receiving the snapshot request at the communication port of said digital camera and responsively creating a digital image (341); and

sending (344) said created digital image from the communication port of said digital camera to said server."

Claim 1 according to the appellant's third auxiliary request differs from that according to the main request by the deletion of the word "and" at the end of the penultimate paragraph, by the replacement of the reference number (31) by (31A) in the same paragraph, and by the addition at the end of the claim of the following text:

"and wherein said one of said at least one digital image is a predetermined digital image (31A) in the memory of said server; and wherein said server is adapted to receive a message (29A) from said at least one of said first devices as said detected event and to associate said message with said predetermined digital image (31A)."

Claim 20 according to the appellant's third auxiliary request differs from claim 21 according to the main request by the addition at the end of the claim of the following text:

"and employing as said at least one digital image a predetermined digital image (31A) in the memory of said server; and

receiving a message (29A) from one of said first devices as said detecting an event and associating said received message with said predetermined digital image."

Claim 1 according to the appellant's fourth auxiliary request plays no part in the present decision. Claim 20 according to that request is identical to that according to the third auxiliary request.

V. The appellant essentially argued as follows:

The subject-matter of claims 1 and 20 according to the third auxiliary request was new with respect to D1, because in the system of D1 the "predetermined digital image" is generated only when the detected event takes place, whereas according to the claimed invention this image is generated before the event takes place and is then stored in the server.

The amendments introduced in claim 1 according to the fourth auxiliary request expressed this difference in more detail.

Reasons for the Decision

1. The appeal is admissible.

2. Main request, first and second auxiliary requests - Novelty (Article 54 EPC)

Although the appellant has maintained the main request and the first and second auxiliary requests which were the subject of the decision under appeal, the statement of grounds of appeal contains no arguments concerning those requests. The board therefore sees no reason to go against the opinion of the examining division that the subject-matter of both independent claims according to each of these requests lacks novelty with respect to document D1 (see in particular Figs. 1 and 6 of that document, as discussed in sections II A) 1., II B) 1. and II C) 2. of the decision under appeal).

3. Third and fourth auxiliary requests - Novelty (Article 54 EPC)

3.1 The appellant's argumentation in the statement of grounds of appeal concerning novelty with regard to claims 1 and 20 of the third auxiliary request are essentially that in the system of D1 the "predetermined digital image" (using the terminology of the present claims) is generated only when the detected event takes place, whereas according to the claimed invention this image is generated before the event takes place and then stored in the server. This argument was however addressed in the decision under appeal (see the paragraphs on page 6 of that decision dealing with this request). The appellant has presented no further arguments in this respect, so that the board sees no reason to deviate from the conclusion of the examining division in this respect. Specifically, the board agrees with the division that the wording "predetermined digital image" cannot be interpreted as being restricted to only the case in which the image is present in the server before the event takes place, and that this conclusion is confirmed by the fact that claim 5 of this request, which is dependent on claim 1, defines that the digital image is generated by a digital camera in response to a message sent by the server after the event has been detected. This feature represents the only difference in substance between the independent claims of the third auxiliary request and those of the main request, the subject-matter of which the board considers to be known from D1, as noted in section 2. above. The board therefore concludes that the subject-matter of claims 1 and 20 of the appellant's third auxiliary request is also not new with respect to D1.

3.2 The appellant's arguments relating to the fourth auxiliary request concern only the independent claim 1. Since claim 20 of this request is identical to that of the third auxiliary request, the conclusion in paragraph 3.1 above applies also to claim 20 of this request.

4. In the light of the above conclusions that the subject-matter of both of the independent claims according to each of the main request and the first to third auxiliary requests and of the second independent claim of the fourth auxiliary request lacks novelty, none of the appellant's requests is allowable.

ORDER

For these reasons it is decided that:

The appeal is dismissed.