T 0399/15 () of 20.12.2016

Summary of Facts and Submissions

I. On 22 December 2014 the appellant (applicant) lodged an appeal against the examining division's decision of 22 October 2014 refusing the European patent application No. 09251474.4 and paid the prescribed fee at the same time. The statement of grounds of appeal was received on 17 February 2015.

II. The examining division held that the subject-matter of independent claim 1 filed on 2 July 2014 contravened the requirements of Article 123(2) EPC.

III. The following documents cited in the search report have been considered for the present decision:

D1 = US 2,846,803

D2 = GB 2 403 389 A

D3 = WO 85/03200

D4 = GB 1 299 869

IV. After a summons to attend oral proceedings and a brief telephone conversation with the rapporteur, the appellant filed a new main request together with a newly adapted description on 14 December 2016. Taking account of the new main request, the Board decided to cancel the oral proceedings, and to continue the proceedings in writing.

V. The appellant requests that the decision under appeal be set aside and a patent be granted based on the new main request as filed on 14 December 2016, or, alternatively, based on the main request and auxiliary requests as previously filed with its grounds of appeal, or, in lieu of any adverse decision, that oral proceedings be held.

VI. The independent claim according to the new main request reads as follows:

"1. A method feeder mould comprising a mould body having a mould surface or surfaces (22) defining an open mould cavity (24), wherein at least a part (26, 44) of the surface or surfaces is movable to assist release in use of a loaded ground bait feeder (10, 11) from the mould; characterized in that the movable surface or surfaces (26, 28, 44) are provided on an element slidably movable with respect to the mould body."

VII. The appellant submitted essentially the following arguments:

Claim 1 of the new main request is based on claims 1 and 5 as filed and therefore originally disclosed. As to inventive step of claim 1, a method feeder mould is quite distinct in the art from a simple pellet former. One of the main problems with the method feeder moulds of the prior art is that, unless the ground bait is mixed perfectly, it sticks to the mould instead of the feeder, as the feeder is removed from the mould. This problem is simply not relevant to the pellet formers of D1, D2, and D3 and, thus, the skilled person would not consult any of these documents to find a solution to the above stated problem. Nor are these documents a suitable starting point for the assessment of the inventive step of claim 1. D4 merely describes a food container which has a base region that can be inverted. Therefore, the subject-matter of claim 1 of the new main request is inventive in the light of the cited prior art.

Reasons for the Decision

1. The appeal is admissible.

2. Amendments

2.1 Claim 1 of the new main request stems from a straightforward combination of claims 1 and 5 as filed.

The Board is, therefore, satisfied that the subject matter of claim 1 of the new main request does not extend beyond the content of the application as filed in accordance with Article 123(2) EPC.

2.2 Moreover, dependent claims 2 to 4 and 5 and 6 of the new main request are based on originally filed claims 2 to 4, and 6 and 9, respectively and, thus, are also not objectionable under Article 123(2) EPC. The new description pages 1 to 4 have been adapted accordingly.

3. Inventive step

3.1 The subject-matter of claim 1 of the new main request relates to a device, namely a "method feeder mould". Such a mould is commonly known for assisting anglers to form ground bait balls around "method feeder" fishing rigs, cf. application, paragraphs 0001 to 0004 (as published), and figure 1. Thus, the generally known method feeder mould shown in figure 2 of the application is considered to form the closest prior art by the Board.

3.2 Hence, the subject-matter of claim 1 differs from the figure 2 prior art disclosure in that at least a part of the surface or surfaces is movable to assist release in use of a loaded ground bait feeder from the mould, wherein the movable surface or surfaces are provided on an element slidably movable with respect to the mould body.

In the Board's view, by considering this difference, the technical problem has to be deduced in the light of the technical effects of the known figure 2 mould during its intended use with a method feeder. That is to say that, the plain curved mould recess of the method feeder mould causes a suction effect that tends to place the moulded bait under tension as the loaded feeder is removed from the mould, and so the pulling action can cause the bait mass to weaken or disintegrate. Furthermore, if the ground bait mix is too wet or too dry, the ground bait sticks to the mould instead of the feeder when the angler attempts to remove the loaded feeder from the mould. Cf. application, paragraph 0005 (as published).

3.3 Consequently, the underlying problem of the distinguishing features of claim 1, see above, may be seen in the provision of a more effective mould for the forming of ground bait on to feeders, which enables the baited feeder to be removed from the mould without loss of bait from the feeder, cf. application, paragraph 0006 (as published).

3.4 Starting from the mould of figure 2 of the application, the question arises whether the skilled person would turn to document D1, which concerns baiting a fish hook with soft bait, cf. D1, column 1, lines 15 to 34, and 59 to 64, and figures. In contrast to a baited feeder to be removed from a plain mould, in D1 the bait is inserted into a hollow cylindrical member, and the hooked end of a fish hook is then inserted into the bait while it is still in the forming member.

D1's use in baiting a fish hook with soft bait is thus technically remote from a mould for a method feeder comprising a frame with open spaces into and around which the bait is compacted so that it adheres to the feeder. As argued by the appellant, the problems of prior art plain moulds when assisting in the forming of ground bait around method feeders, see above, are indeed nowhere addressed in D1.

3.5 Consequently, the Board concludes that the skilled person faced with the problem to enable a loaded ground bait feeder to be removed from the mould of figure 2 of the application more effectively would not consider D1 and, therefore, D1 could not have led the skilled person to a method feeder mould of claim 1 of the new main request.

3.6 The above considerations with respect to D1 likewise apply to the bait compression apparatus of documents D2 or D3 (see abstracts).

3.7 Finally, document D4 concerns a plastic food container and, notwithstanding its having a mould shaped plain base region, see figure 3, the Board sees no reason why the skilled person would consider it in conjunction with a method feeder mould. However, even if D4 were considered, since it addresses the problem of discharging a gelatinous substance from a mould shaped floor in one piece as a coherent mass, it would not have led the skilled person to mould surfaces provided on an element slidably movable with respect to the mould body as required by claim 1. On the contrary, D4 invariably hints at a flexible base portion which can be pressed into the interior of the container, i.e. can be inverted. Cf. D4, page 1, lines 20 to 38, lines 86 to 94, and figure 3.

3.8 In summary, starting from the prior art disclosure of figure 2 of the application, and faced with the problem of a more effective mould for the forming of ground bait on to feeders, see above, the subject-matter of claim 1 would not have been obvious for the skilled person in the light of documents D1 to D4, without hindsight.

Therefore the subject-matter of claim 1 of the new main request involves an inventive step.

3.9 Claims 2 to 6 directly or indirectly depend on claim 1. Therefore the subject-matter of claims 1 to 6 of the new main request complies with the requirements of Article 56 EPC.

4. The Board is moreover satisfied that the other requirements of patentability of the new main request are also fulfilled.

5. Since the new main request is found allowable by the Board, there is no need for the Board to consider the alternatively requested previous main and auxiliary requests. The scheduled oral proceedings were therefore cancelled.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the examining division with the

order to grant a patent based on the following application documents:

Claims: 1-6 of the new main request as filed with letter dated 14 December 2016;

Description: Pages 1 to 4 of the new main request as filed with letter dated 14 December 2016;