| European Case Law Identifier: | ECLI:EP:BA:2011:T159610.20111122 | ||||||||
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| Date of decision: | 22 November 2011 | ||||||||
| Case number: | T 1596/10 | ||||||||
| Application number: | 05256100.8 | ||||||||
| IPC class: | G06F 1/00 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Method and apparatus for software integrity protection using timed executable agents | ||||||||
| Applicant name: | LUCENT TECHNOLOGIES INC. | ||||||||
| Opponent name: | - | ||||||||
| Board: | 3.5.06 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | - | ||||||||
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Summary of Facts and Submissions
I. The appeal lies against the decision of the examining division to refuse the European patent application 05256100.8 which was dispatched with letter of 16 February 2010.
II. The refusal refers inter alia to the documents
D5: M. Shaneck et al., "Remote Software-Based Attes ta tion for Wireless Sensors", European Work shop on Security and Privacy in Ad Hoc and Sensor Net works, Springer-Verlag, LNCS 3813, pp. 27-41, 2005
D6: R. Kennell et al., "Establishing the Genuinity of Remote Computer Systems", Proc. 12th USENIX Security Symposium, The Usenix Association, pp. 295-310, 2003,
and comes to the conclusion that all claims lack novel ty over D5. In a section entitled "further remarks" that is not part of the reasons for the decision, it is mentioned, without further detail, that claims 1-7 also appear not to meet the requirements of novelty and inventive step in view of D6.
III. A notice of appeal was received on 8 April 2010 and the appeal fee was paid on the same day. A statement of grounds of appeal was received on 16 June 2010. It was requested that the decision under appeal be set aside and (implicitly) that a patent be granted based on the description and the claims currently on file, arguing that the independent claims were novel over D5 as well as over the other prior art documents on file.
IV. In a communication the board expressed its preliminary opinion on the substance of the appeal. In a response by telefax of 15 June 2011, the appellant filed amended claims 1-7 as an auxiliary request.
V. With letter of 18 July 2011 the board informed the appellant that it had noticed that D5 did not constitute prior art for the present application and that therefore it intended to set aside the decision and remit the application to the examining division for further prosecution. By telefax of 1 September 2011, the appellant agreed to this course of action.
Reasons for the Decision
1. The application was filed on 29 September 2005 and claims the priority right of U.S. Patent Application No. 10/976,353 filed on 27 October 2004.
1.1 The validity of the claimed priority was neither disputed during the examination procedure, nor has the board occasion to doubt it, especially since the description and the drawings of the application as originally filed and those of the priority document are substantively identical and the claims of the application as originally filed are identical to claims of the priority document.
1.2 Thus according to Article 89 EPC 1973 the date of priority shall count as the date of filing for the purpose of Article 54(2) EPC 1973.
1.3 Document D5 is contained in volume 3813 of the Lecture Notes in Computer Science series (LNCS 3813) which was published in 2005. According to its title page, this book contains revised versions of selected papers presented at a work shop (ESAS 2005) which itself had taken place in July 2005.
1.4 Therefore D5 was not made available to the public before the date of priority, does not belong to the state of the art for the application, Article 54(2) and 89 EPC 1973, and cannot support the conclusion that the claims lack novelty, Article 54(1) EPC 1973.
2. The impugned decision cites six documents from the prior art but the body of the decision only mentions D5 and D6.
2.1 Furthermore, the reasons for the decision rely exclusively on D5.
2.2. The only reference to document D6 is made in a section entitled "Further remarks" which does not constitute part of the reasons for the decision. This section contains the statement (see point 2) that "[t]he subject-matter of claims 1-7 further appears not to meet the require ments of novelty and inventive step in view of D6" but no reasoning that would lead to this conclusion. The board adds that also the communications of the examining division are limited to similar brief statements without reasons (see the communication dated 13 February 2009, point 2.6, and the summons to oral procee dings dated 18 November 2009, point 1.8). The board has to conclude that D6 was never actually discussed with the applicant.
2.3 Hence the decision under appeal contains no reasons which could support the refusal of the application and thus has to be set aside.
ORDER
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The application is remitted to the examining division for further prosecution.
