T 2157/11 () of 30.7.2013

Summary of Facts and Submissions

I. This appeal is against the decision of the Examining Division dated 18 Mai 2011 to refuse the patent application.

The Appellant's notice of appeal was received on 27 July 2011 and the appeal fee was paid simultaneously. The statement setting out the grounds of appeal was received on 28 September 2011.

II. The Examining Division considered that claim 1 of the main and of the auxiliary request lacked clarity contrary to Article 84 EPC.

III. The Appellant (applicant) requests that the decision under appeal be set aside and that a patent be granted based on the main request filed with letter dated 26 July 2013. Alternatively, it is requested that the case be remitted to the first instance for further prosecution in the event that there are any remaining issues.

IV. Claims 1 of the main request reads as follows

" A fall arrest system comprising a safety line, at least one support and a traveller, in which the support comprises a cylindrical tube retaining the safety line and an attachment means for attaching the support to a structure, the cylindrical tube and attachment means being connected by a radial section extending vertically below the tube and an arm having a section narrower than the safety line and inclined relative to the vertical and the traveller comprising a body having a passage therethrough, a slot narrower than the safety line linking the passage to the exterior of the body and a load member suitable to attach the traveller to fall safety equipment, the slot being formed between an inner gate extending inwardly relative to the passage and an outer gate extending outwardly relative to the passage, both having respective opposed convex surfaces defining the slot between them, the inner gate and outer gate being arranged such that when the traveller is mounted on the support, the inclined section of the arm can pass through the slot."

V. Oral proceedings took place on 30 July 2013 before the Board of Appeal. Although duly summoned the Appellant did not appear. With letter dated 26 July 2013 he informed the Board that he would not attend the oral proceeding. According to Rule 115(2) EPC the proceeding were continued without him.

VI. The Appellant mainly argued as follows:

Claim 1 now features the combination of the traveller and the support. All features which are considered to be essential are now included into claim 1. This claim is therefore deemed to be allowable.

Reasons for the Decision

1. The appeal is admissible.

2. Amendments:

2.1 Claim 1 of the main request is based on independent claim 3 as originally filed.

The term "support section" previously used in claim 3 and which does not appear in the description as filed has been replaced by "cylindrical tube". This amendment is based on claim 6 as originally filed.

That the inner gate extends inwardly relative to the passage and the outer gate extends outwardly relative to the passage, both having respective opposite convex surfaces is disclosed in claim 1 as filed.

That "the cylindrical tube and attachment means being connected by a radial section extending vertically below the tube and an arm having a section narrower than the safety line" is disclosed on page 8, lines 9 to 13 of the original description. The rather unclear expression "a section … substantially tangentially to the safety line" has been replaced by "a section inclined relative to the vertical" as shown in figures 1 to 7.

These amendments therefore comply with the requirements of Article 123(2) EPC.

2.2 The features which were considered as essential have been included into claim 1.

The unclear expressions "support section" and "substantially tangentially" have been replaced.

The requirements of Article 84 EPC are thus fulfilled.

3. Further processing

3.1 Since proceedings before the Boards of Appeal are primarily concerned with the examination of the contested decision, remittal of the case to the Examining division in accordance with Article 111(1) EPC is normally considered by the Boards in cases where the Examining division has issued a decision solely upon a particular issue (here clarity, Article 84 EPC) and has left substantive issues regarding novelty (Article 54 EPC) or inventive step (Article 56 EPC) undecided.

3.2 Moreover, the Appellant has requested remittal in case there are any remaining issues. In this respect, the description, figures and dependent claim 3 still need to be adapted to claim 1 now on file.

3.3 The Board therefore considers it appropriate to remit the case to the first instance for consideration of the undecided issues.

ORDER

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the department of first instance for further prosecution.