T 1619/15 () of 2.11.2018

Summary of Facts and Submissions

I. The applicant appealed against the decision of the examining division refusing European patent application No. 05790599.4 on the basis of Article 83 EPC.

II. According to the statement setting out the grounds of appeal, the applicant requested that the decision under appeal be set aside and that a patent be granted on the basis of the claims filed with the letter of 12 December 2013.

As a precaution, the applicant requested oral proceedings.

III. In a communication annexed to a summons to oral proceedings, the board informed the applicant about its provisional and non-binding opinion according to which, inter alia, the invention was not sufficiently disclosed within the meaning of Article 83 EPC 1973.

IV. The board's opinion concerning lack of sufficiency of disclosure of the invention was worded as follows (see point 5 of the communication annexed to the summons):

"5. Sufficiency of disclosure

5.1 The board, concurring with the appealed decision, is of the provisional and non-binding opinion that the invention is not sufficiently disclosed within the meaning of Article83 EPC 1973.

More precisely, the board is of the opinion that the application does not disclose how the first failure judging circuit (14) of claim 1 is configured to achieve the objective defined in claim 1, i.e. "to judge a failure of the second angular velocity sensor (13) based on whether or not a detection value of an angular velocity about the Z-axis lies outside a tolerance range of a detection value of an angular velocity about the Z-axis by the first angular velocity sensor (12)".

The reason for the board's opinion is as follows (see also the reasons given in particular in paragraph 2.4 of the appealed decision):

The above-mentioned objective "to judge a failure of the second angular velocity sensor (13)" uses twice the expression "a detection value of an angular velocity about the Z-axis". While it is explicit in claim 1 that the second use of the expression "a detection value of an angular velocity about the Z-axis" refers to a detection value obtained by the first angular velocity sensor (12), it is unclear to which detection value refers the first use of said expression (Article 84 EPC 1973). In view of the overall disclosure of the application it seems to be appropriate to assume that the first use of said expression refers to a detection value obtained by the second angular velocity sensor (13). However, the exact kind of detection value provided by said second sensor remains obscure.

According to claim 1, the second sensor (13) has a shaft portion arranged obliquely to the X-axis and the Z-axis. The inclination angle of the shaft portion with respect to the X-axis, hence of the measuring axis of the second sensor (13), was referred to in the first-instance proceedings as being the angle alpha. The second sensor (13) provides a measurement Omega13 of the angular velocity of the movable body projected onto the measurement axis of the second sensor. Assuming the general situation of a movable body characterized by an arbitrary and unknown angular velocity Omega along an axis inclined by an arbitrary and unknown angle beta with respect to the X-axis, the signal Omega13 measured by the second angular velocity sensor (13) appears to equal Omega13 = Omega * cos(beta-alpha). In other words, a given signal Omega13, measured by the second sensor (13), is not linked to a unique movement of the movable body defined by a unique couple of values Omega and beta.

In view of the fact that a given signal Omega13 corresponds to an arbitrary movement (Omega, beta) of the movable body, it is obscure how the second angular velocity sensor (13) can provide a detection value Omega13 of an angular velocity about the Z-axis being compared in a meaningful manner with the detection value Omega12 provided by the first sensor (12). No further information clarifying the functioning of the second sensor appears to be provided in the description as filed.

It is to be noted that the arguments above are based on the assumption that the movement of the body is limited to an angular movement along Z and X axes only. Claim 1 is actually not accordingly limited. When considering a movement of the body over the whole scope of the claim, i.e. including the possibility of a Y-component of the angular velocity, the issue that the signal provided by the second sensor (13) provides no useful information for judging a failure of the second sensor (13) appears to be exacerbated.

5.2 The arguments provided by the applicant in the grounds of appeal do not appear to be convincing.

Since signal Omega13 depends inter alia on the angle beta, formulas 1 and 2, referred to on pages 2 and 3 of the applicant's grounds of appeal, seem to be incorrect in the sense that the parameters OmegaZ and OmegaX used in these formulas do not represent the real Z-axis (yaw) and X-axis (roll) components of the body's movement. Formula 3 of the grounds of appeal, i.e. Omega12 = OmegaZ appears to be correct. However, parameter OmegaZ referred to in formula 3 designates a different component of movement than the parameter OmegaZ referred to in formulas 1 and 2. Therefore, formulas 4 and 5, including the applicant's conclusion that the application was sufficiently disclosed, do not seem to be correct either."

V. In response to the summons to oral proceedings, the applicant informed the board with its letter dated 8 October 2018 that it decided not to attend or be represented at the oral proceedings. The applicant did not file any comments concerning the board's preliminary opinion as annexed to the summons.

VI. Following the applicant's letter of 8 October 2018, the oral proceedings were cancelled.

VII. Independent claim 1 according to the main request reads as follows:

"An angular velocity sensor diagnosing device (20) to be mounted in a movable body (11) being an airplane, automobile, robot, ship or vehicle, comprising: an angular velocity sensor unit (10) including two angular velocity sensors (12, 13) each having an oscillator (17) having a shaft portion (15) and an oscillatory portion (16), wherein: a first angular velocity sensor (12) which is one of the two angular velocity sensors (12, 13) is arranged such that the shaft portion (15) thereof is parallel to a Z-axis of the movable body (11) and a second angular velocity sensor (13) which is one of the two angular velocity sensors (12, 13) is arranged such that the shaft portion (15) thereof is oblique both to an X-axis of the movable body (11) and the Z-axis of three orthogonal axes; wherein the X-axis defines a forward direction of the movable body (11), and the Z-axis defines an upward direction of the movable body (11); a first failure judging circuit (14) configured to judge a failure of the second angular velocity sensor (13) based on whether or not a detection value of an angular velocity about the Z-axis lies outside a tolerance range of a detection value of an angular velocity about the Z-axis by the first angular velocity sensor (12), and a second failure judging circuit (19) configured to judge a failure of the first angular velocity sensor (12) by comparison with an angular velocity calculated by a sensor, mounted in the movable body (11), which is capable of deriving the angular velocity from a speed of the movable body (11), a steering angle of the movable body (11) and acceleration of the movable body (11); wherein the comparison is performed by means of a comparator (22) which receives the angular velocity calculated by the sensor which is mounted in the movable body (11)."

Reasons for the Decision

1. In its letter dated 8 October 2018 the applicant stated "... the applicant wishes to avoid further expenditure on this case and, as a cost saving measure, .... has decided not to attend or be represented at the oral proceedings". This statement is considered equivalent to a withdrawal of the request for oral proceedings (see Case Law of the Boards of Appeal, 8th edition 2016, section III.C.2.3.1 and further references cited there). Consequently, the oral proceedings were cancelled and an immediate decision on the file as it stood was taken.

2. In the communication annexed to the summons to oral proceedings (see point IV. above), the board expressed its preliminary opinion, along with the underlying reasons, that the patent application did not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art and that the applicant's arguments in favour of sufficiency of disclosure, filed with the grounds of appeal, were not convincing. The applicant did neither rebut the board's provisional opinion, nor submit any new requests aiming at overcoming the objections. The board sees no reason to deviate from its preliminary opinion, which therefore becomes final.

It follows that the invention is not disclosed in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art (Article 83 EPC 1973).

Order

For these reasons it is decided that:

The appeal is dismissed.