T 0597/16 () of 10.8.2020

Summary of Facts and Submissions

I. The applicant (appellant) filed an appeal against the decision of the examining division to refuse European patent application no. 13 153 773.0.

II. The following document is relevant for the present decision:

D2: Siti Kamaliah Yusoff et al.: "Optimal Camera Placement for 3D Environment", Software Engineering and Computer Systems, Communications in Computer and Information Science, vol. 180, 2011, abstract and pages 448 to 449.

III. In the decision under appeal, the examining division came to the conclusion inter alia that the subject-matter of claim 1 of the second and the third auxiliary requests did not involve an inventive step in the sense of Article 56 EPC.

IV. With the statement of grounds of appeal of 26 February 2016, the appellant filed a main request, a first auxiliary request and a second auxiliary request, wherein the main and first auxiliary requests correspond respectively to the second and third auxiliary requests underlying the decision under appeal.

V. The appellant was summoned to oral proceedings. In a communication under Article 15(1) RPBA 2020, the board informed the appellant that it tended to share the examining division's conclusion in the decision under appeal and that the second auxiliary request did not seem to be sufficiently substantiated.

VI. Oral proceedings before the board took place on 10 August 2020 by video conference.

VII. The appellant requested that the decision under appeal be set aside and that a patent be granted on the basis of the claims of the main request or of the first auxiliary request, both filed with the letter of 23 March 2020, or of the second auxiliary request filed with the statement of grounds of appeal, or of one of the third to fifth auxiliary requests filed with the letter of 23 March 2020.

VIII. Claim 1 of the main request reads as follows:

" A method comprising:

providing a diagram of a facility to be monitored wherein the diagram of the facility to be monitored is one of a CAD diagram and a BIM diagram;

control circuitry identifying a plurality of areas on the diagram of the facility;

control circuitry determining a three-dimensional volume for each of the plurality of identified areas;

responsive to the control circuitry determining the three-dimensional volume for each of the plurality of identified areas, control circuitry determining a placement to set up each of a plurality of data collection devices in respective ones of the plurality of identified areas to ensure that a minimum number of the plurality of data collection devices captures a maximum space in the respective ones of the plurality of identified areas; and

control circuitry determining a configuration set up for each of the plurality of data collection devices;

wherein the control circuitry determining a placement to set up each of the plurality of data collection devices includes:

for fixed data collection devices in the plurality of data collection devices, control circuitry determining three-dimensional pyramid sections in respective three-dimensional volumes in each identified area, and control circuitry determining an apex of each three dimensional pyramid section as the placement to set up one of the plurality of data collection devices; and

for PTZ cameras devices in the plurality of data collection devices, control circuitry determining a coverage pyramid set including minimum and maximum pan, tilt, and zoom values for the PTZ cameras and an initial monitored pyramid in respective three-dimensional volumes in each identified area, control circuitry determining three dimensional pyramid sections for the initial monitored pyramid, and control circuitry determining an apex of each three-dimensional pyramid section for the initial monitored pyramid as the placement to set up one of the plurality of PTZ Cameras."

IX. Claim 1 of the first auxiliary request differs from claim 1 of the main request as shown by emphasis in the following:

"[...]

for PTZ cameras in the plurality of data collection devices, control circuitry determining a coverage pyramid set [deleted: including minimum and maximum pan, tilt, and zoom values for the PTZ cameras ]and an initial monitored pyramid in respective three dimensional volumes in each identified area, control circuity to receive additional configuration parameters of the configuration set up from a user, control circuitry determining three- dimensional pyramid sections for the initial monitored pyramid, and control circuitry determining an apex of each three-dimensional pyramid section for the initial monitored pyramid as the placement to set up one of the plurality of PTZ cameras."

X. Claim 1 of the second auxiliary request differs from claim 1 of the main request as shown by emphasis in the following:

"[...]

for PTZ cameras in the plurality of data collection devices, control circuitry determining a coverage pyramid set [deleted: including minimum and maximum pan, tilt, and zoom values for the PTZ cameras ]and an initial monitored pyramid in respective three dimensional volumes in each identified area, control circuity to receive additional configuration parameters from a user for the derivation of coverage sets for identified area volume, control circuitry determining three- dimensional pyramid sections for the initial monitored pyramid, and control circuitry determining an apex of each three-dimensional pyramid section for the initial monitored pyramid as the placement to set up one of the plurality of PTZ cameras."

XI. Claim 1 of each of the third to fifth auxiliary requests differs from claim 1 of the main request and first and second auxiliary requests respectively by the following amendments indicated by underlining:

"control circuitry configured for receiving one or more critical areas to be monitored at all times and determining a coverage pyramid set based at least in part on the critical areas".

XII. The appellant's arguments as far as they are relevant for the present decision are as follows:

Main request and first auxiliary request - inventive step

Document D2, which was the closest prior art, failed to disclose the following features of claim 1 of the main request:

"for PTZ cameras devices in the plurality of data collection devices, control circuitry determining a coverage pyramid set including minimum and maximum pan, tilt, and zoom values for the PTZ cameras and an initial monitored pyramid in respective three-dimensional volumes in each identified area, control circuitry determining three dimensional pyramid sections for the initial monitored pyramid, and control circuitry determining an apex of each three-dimensional pyramid section for the initial monitored pyramid as the placement to set up one of the plurality of PTZ Cameras."

At least the feature: "control circuitry determining a coverage pyramid set including minimum and maximum pan, tilt, and zoom values for the PTZ cameras" involved an inventive step in view of D2.

Even if the person skilled in the art were to consider the application of PTZ cameras in the teaching of D2, they would not be prompted to determine a coverage pyramid set including minimum and maximum pan, tilt, and zoom values for a PTZ camera.

The crucial aspect of the invention was described in paragraphs [0017] and [0021] of the application. According to paragraph [0017], the coverage pyramid set could be defined using minimum and maximum pan, tilt, and zoom values for a PTZ surveillance camera corresponding to what was recited in claim 1 of the main request. Furthermore, according to paragraph [0021] additional configuration parameters could be used to optimally derive coverage pyramid sets for the volume of each identified critical area. It was further clear from the connection of the two paragraphs that the critical areas were related to the definition of the minimum and maximum pan, tilt and zoom values of the PTZ cameras so that a user could define for example minimum and maximum pan values to cover a critical area to thereby avoid panning away from this critical area.

D2 was merely directed at improving over 2D modelling. The simple knowledge of FOV (field of view), initial PTZ camera setting and flow chart of frustums illustrated in D2 offered no guidance towards the appellant's solution according to claim 1 of the main request.

The use of minimum and maximum pan, tilt and zoom values of PTZ cameras in terms of critical areas to be monitored thus was not rendered obvious in light of the closest prior art document D2 and therefore involved an inventive step.

Claim 1 of the first auxiliary request was amended to specify that the nature of the configuration parameters related to the PTZ cameras as supplied by a user.

The arguments provided with regard to the main request also applied to the first auxiliary request. The subject-matter of claim 1 therefore involved an inventive step in the sense of Article 56 EPC in view of the closest prior art document D2.

Admittance of the second auxiliary request into the appeal procedure

The second auxiliary request filed with the statement of grounds of appeal should be admitted into the appeal procedure. It was stated in the "Remarks" annexed to the statement of grounds of appeal on page 4, last paragraph, that the additional feature of claim 1 of the second auxiliary request "for the derivation of coverage sets for identified area volume" further defined the distinction [over the prior art]. This statement should be considered as sufficient substantiation, given the brevity of the additional feature. Furthermore, in view of the fact that the closest prior art document D2 clearly did not disclose the additional feature and that there was no common general knowledge present in this respect, a discussion of inventive step, in particular by applying the "problem and solution approach", was not possible.

Admittance of the third to fifth auxiliary requests

The third to fifth auxiliary requests filed with letter of 23 March 2020 should be admitted into the appeal procedure. The additional feature in claim 1 of each of the third to fifth auxiliary requests was as underlined in the following: "control circuitry configured for receiving one or more critical areas to be monitored at all times and determining a coverage pyramid set based at least in part on the critical areas". The additional feature was in itself not distinguishing but served to overcome the board's objection relating to clarity raised in the communication under Article 15(1) RPBA 2020, in particular under point 4 and with respect to the main request.

Reasons for the Decision

1. The appeal is admissible.

2. Inventive step (Article 56 EPC)

2.1 Admittance of the main request and first auxiliary request into the appeal procedure

2.1.1 After notification of the summons, the appellant with letter of 23 March 2020 filed a new main request and a new first auxiliary request. Admittance of these requests into the appeal procedure is thus at the board's discretion under Article 13(2) RPBA (reference is made to the transitional provisions laid down in Article 25(3) RPBA 2020).

2.1.2 The question of whether the new main request and the first auxiliary request are to be admitted into the appeal procedure can however remain open, since in any case neither of the two requests meets the requirement of Article 56 EPC.

2.2 Clarity issues

Notwithstanding the fact that some of the board's findings below imply that claim 1 of each of the main request and the first auxiliary request does not meet the requirements of Article 84 EPC, this aspect is not dealt with in the present decision, since the subject-matter of claim 1 in any case would not involve an inventive step even if these objections were overcome.

2.3 Main request

2.3.1 The subject-matter of claim 1 of the main request does not involve an inventive step in the sense of Article 56 EPC.

2.3.2 The appellant did not contest the examining division's finding in the decision under appeal that document D2 discloses the following features of claim 1 (see point 2.1 of the reasons for the decision under appeal):

A method comprising:

providing a diagram of a facility to be monitored (it is implicit that the method uses a computer data model (diagram) of the facility to be monitored i.a. since the article is from a book called Software Engineering and Computer Systems);

control circuitry identifying a plurality of areas on the diagram of the facility (implicit in the Art Gallery Problem on which the method of D2 is based, is the specification of areas to be monitored, hence the identification of a plurality of such areas in the model, here a diagram. The computer running the program of the method of D2 is then the control circuitry. This applies mutatis mutandis to all other control circuitries in the claim),

responsive to the control circuitry determining a three-dimensional volume for each of the plurality of identified areas (the volume of the space observed by each camera placed in the 3D environment is calculated, see last 2 sentences of the Abstract, the computer running the program of the method of D2 is then the control circuitry), control circuitry determining the three-dimensional volume for each of the plurality of identified areas, control circuitry determining a placement to set up of a plurality of data collection devices in respective ones of the plurality of identified areas and control circuitry determining a configuration set up for each of the plurality of data collection devices (implicit: camera placement determination is considered equivalent to data collection device configuration).

wherein the control circuitry determining a placement to set up each of the plurality of data collection devices includes:

for fixed data collection devices in the plurality of data collection devices, control circuitry determining three-dimensional pyramid sections in respective three-dimensional volumes in each identified area, and control circuitry determining an apex of each three-dimensional pyramid section as the placement to set up one of the plurality of fixed data collection devices; (pyramids with the apex placed at the point of view and the base at the ROI [Region of Interest] is the standard way of modelling the FOV and is used in the method of D2, see i.a. last sentence of abstract of D2: "Placement in 3D environment uses volume approach that takes frustum's volume and space's volume to calculate minimum number of camera". The feature is thus known from D2).

2.3.3 Since the board does not see a reason to depart from the examining division's finding, the subject-matter of claim 1 of the main request consequently differs from document D2 in the following features:

- the use of CAD or BIM to create the diagram of the facility;

- for PTZ cameras devices in the plurality of data collection devices, control circuitry determining a coverage pyramid set including minimum and maximum pan, tilt, and zoom values for the PTZ cameras and an initial monitored pyramid in respective three-dimensional volumes in each identified area, control circuitry determining three dimensional pyramid sections for the initial monitored pyramid, and control circuitry determining an apex of each three-dimensional pyramid section for the initial monitored pyramid as the placement to set up one of the plurality of PTZ cameras.

2.3.4 As regards the first above-mentioned distinguishing feature, the board agrees with the examining division's opinion set out in the decision under appeal that at the effective date of the patent application CAD and BIM were standard methods to provide a diagram of a facility (see point 2.3.1 of the reasons for the decision under appeal). It would therefore have been obvious to the person skilled in the art to choose one of these two methods when providing the computer-generated diagram of the 3D environment to be processed in D2.

2.3.5 The appellant pointed out in writing that the invention uses one of a CAD or a BIM diagram to provide the diagram of a facility to be monitored, which was not disclosed in D2. However, they did not provide any argument as to why the use of CAD or BIM would not have been obvious to the skilled person when starting from D2 as the closest prior art document.

2.3.6 In the absence of any convincing arguments from the appellant in support of non-obviousness of the first distinguishing feature cited above, the board has come to the conclusion that it is obvious to the skilled person and therefore does not contribute to an inventive step of the subject-matter of claim 1 in the sense of Article 56 EPC.

2.3.7 As regards the second above-mentioned distinguishing feature related to the use of PTZ cameras, the board is not convinced by the appellant's arguments according to which the use of PTZ cameras, as defined in claim 1 of the main request, with reference to paragraphs [0017] and [0021] of the application, involved an inventive step.

It is already doubtful to what extent the disclosures contained in paragraphs [0017] and [0021] can be combined at all in the sense put forward by the appellant. However, even if these paragraphs were clearly related, the combined teaching does not refer to an alleged critically important aspect of preventing the PTZ camera from panning away from a critical area by defining minimum and maximum pan, tilt and zoom values of PTZ cameras in relation to a critical area to be monitored.

In this respect, the board observes that minimum and maximum pan, tilt and zoom values of PTZ cameras are nowhere defined in the application. The fact that both paragraphs [0017] and [0021] mention a "coverage pyramid set" and a "coverage set", respectively, does not allow the conclusion to be drawn that the minimum and maximum pan, tilt and zoom values for a PTZ camera are to be interpreted in terms of a critical area to be monitored in order to avoid panning, tilting or zooming away from this critical area. The same applies to the mentioning of "additional configuration parameters can be solicited from a user for PTZ surveillance cameras" in paragraph [0021], since there is no explicit or implicit disclosure that the additional configuration parameters refer to the minimum and maximum pan, tilt and zoom values of the PTZ cameras and serve to derive the coverage pyramid sets in terms of the critical volume to be monitored.

Thus, in the absence of any definition in the claims or the description, the minimum and maximum pan, tilt and zoom values of a PTZ camera used to determine the coverage pyramid set, as cited in claim 1, has to be interpreted in the normal way such that it refers to the minimum or maximum panning, tilting or zooming characteristics of the PTZ camera, which, beginning from a minimum starting point, describe the camera's ability to pan, tilt or zoom to a maximum end point and thereby describe the camera's maximum coverage space.

Thus, there is no explicit teaching present in the application as a whole, which supports the appellant's argument that the minimum and maximum pan, tilt and zoom values of a PTZ camera are clearly to be understood in terms of the extent of the critical area to be monitored.

2.3.8 For the purposes of assessment of inventive step, the board therefore considers any special meaning of the feature "control circuitry determining a coverage pyramid set including minimum and maximum pan, tilt and zoom values for the PTZ cameras" beyond its normal meaning not to be present. Claim 1 must therefore be interpreted as meaning that the "minimum and maximum pan, tilt and zoom values" refer to the characteristics of the PTZ camera as such, independent of a critical area to be monitored. No other meaning can be derived from claim 1, either alone or drawing on the teaching of the description.

2.3.9 Furthermore, the board considers the wording "determining three-dimensional pyramid sections" of claim 1 to be vague and thus to require interpretation for the purposes of the assessment of inventive step. In particular, claim 1 does not specify how "pyramid sections" are established in the respective three-dimensional volumes in order to optimally place and configure video surveillance cameras and in particular to determine a minimum number of cameras to cover a maximum portion of a monitored space. In the absence of any recognisable special effect of the determination of three-dimensional pyramid sections in order to determine the camera's position, the board for the purposes of assessment of inventive step, interprets the above mentioned feature broadly in the sense that a three-dimensional approach using pyramid sections is applied to determine a camera's position. The appellant did not contest this interpretation.

2.3.10 Notwithstanding the arguments referring to an alleged special meaning of the minimum and maximum pan, tilt and zoom values of the PTZ camera for the purpose of determining a coverage pyramid set, the appellant did not contest that the use of PTZ cameras in a method as disclosed in document D2 was generally obvious.

The board considers that none of the features specified in claim 1 with respect to the PTZ cameras go beyond what would directly follow from the implementation of a PTZ camera in a method as disclosed in D2, and the appellant has not presented any convincing arguments in this respect.

When using a PTZ camera in a method as disclosed by D2, the person skilled in the art would necessarily have had to implement control circuitry including the second of the above-mentioned distinguishing features and would consequently have directly arrived at the claimed invention. In particular, it is evident that the common parameters of a PTZ camera, such as the minimum and maximum pan, tilt and zoom values, would have had to be considered for the purpose of determining a pyramid coverage set, as well as a required initial monitored pyramid, in order to then determine the placement of the PTZ camera on the basis of determined pyramid sections for the initial monitored pyramid according to the three-dimensional approach taught by D2.

2.3.11 The board has therefore come to the conclusion that the subject-matter of claim 1 of the main request is rendered obvious to the person skilled in the art and consequently does not involve an inventive step in the sense of Article 56 EPC.

2.4 First auxiliary request

2.4.1 The subject-matter of claim 1 of the first auxiliary request does not involve an inventive step in the sense of Article 56 EPC.

2.4.2 Claim 1 of the first auxiliary request specifies that the control circuitry receives additional configuration parameters of the configuration set up from a user. The board does not consider this feature to contribute to an inventive step in the sense of Article 56 EPC.

As has been correctly found by the examining division, the provision of means to configure a camera is standard. The further specification "of the configuration set up" merely clarifies that the configuration parameters refer to the PTZ camera. The "additional configuration parameters" thus are not further defined in claim 1, except that they relate to the configuration set up of the camera, and it is not clear what purpose they serve in the context of camera positioning. Consequently, they do not contribute anything substantial to the claim that could be considered relevant in the assessment of inventive step.

2.4.3 The board's conclusions with respect to the main request under point 2.3 therefore also apply to the first auxiliary request. The subject-matter of claim 1 of the first auxiliary request is therefore rendered obvious to the person skilled in the art and consequently does not involve an inventive step in the sense of Article 56 EPC.

3. Admittance

3.1 Second auxiliary request

3.1.1 With the statement of grounds of appeal, the appellant filed a new second auxiliary request, claim 1 of which contains the additional wording underlined below:

"control circuity to receive additional configuration parameters from a user for the derivation of coverage sets for identified area volume".

3.1.2 The "Remarks" annexed to the statement of grounds of appeal contained the following passage referring to the new second auxiliary request:

"The Second Auxiliary Request comprises claims based on the First Auxiliary Request but with the additional feature of "for the derivation of coverage sets for identified area volume," thereby further defining the distinction, and the technical character, of the control circuitry and configuration parameters. Accordingly the Second Auxiliary Request is patentable over D2."

3.1.3 According to Article 12(2) RPBA 2007, which in connection with Article 12(4) RPBA 2007 in view of the transitional provisions laid down in Article 25(2) RPBA 2020 is applicable in the present case, the statement of grounds of appeal shall set out clearly and concisely the reasons why it is requested that the decision under appeal be reversed, amended or upheld, and should specify expressly all the facts, arguments and evidence relied on.

3.1.4 Apart from the fact that the appellant did not indicate the basis for the amendment in the application as filed (Rule 137(4) EPC), the appellant's observations cited above cannot be considered as sufficient substantiation for the second auxiliary request within the meaning of Article 12(2) RPBA 2007. Rather, the brief statement is vague and leaves it to the board to identify the essential technical contribution of the additional feature and why it could possibly contribute to an inventive step with regard to document D2.

In any case, the statement "further defining the distinction, and the technical character" is not sufficient for the board to understand why the appellant considers the amendment to justify the decision under appeal being set aside and a patent being granted on the basis of the second auxiliary request.

3.1.5 Also, contrary to the appellant's view, a short amendment, in the sense that the number of words added is small, does not justify a reduction of the degree of substantiation of the corresponding amendment required in the statement of grounds of appeal. On the contrary, the essential technical contribution in such a case may not be obvious and may therefore require more detailed explanations in order to avoid the board having to make its own investigations, as is presently the case.

3.1.6 Furthermore, difficulties in applying the "problem and solution approach" to the specific case at hand cannot be considered to have hindered the appellant from submitting any substantive argument, why the amendment contributes to an inventive step in view of the closest prior art document D2.

3.1.7 Moreover, it is not possible to remedy a lack of substantiation in the statement of grounds of appeal at at a later stage in the appeal procedure, as the requirements of Article 12(2) RPBA 2007 are clear in this respect. Therefore, apart from the fact that no arguments with regard to inventive step are provided in that letter either, the statements on page 6 of the appellant's letter of 23 March 2020 have to be considered irrelevant as regards the admittance of the second auxiliary request into the appeal procedure under Article 12(4) RPBA 2007.

3.1.8 In light of the above considerations, the board exercised its discretion under Article 12(4) RBPA 2007 not to admit the second auxiliary request into the appeal procedure.

3.2 Third to fifth auxiliary requests

3.2.1 Given that the appellant was notified of the summons to oral proceedings after 1 January 2020, Article 13(2) RPBA 2020 is applicable in the present case (reference is made to the transitional provisions laid down in Article 25(3) RPBA 2020).

3.2.2 With letter of 23 March 2020 the appellant, in reply to the board's communication under Article 15(1) RPBA 2020, filed new third to fifth auxiliary requests, whose admittance into the appeal procedure is therefore at the board's discretion under Article 13(2) RPBA 2020.

According to Article 13(2) RPBA 2020, any amendment to a party's appeal case made after notification of a summons to oral proceedings shall, in principle, not be taken into account unless there are exceptional circumstances, which have been justified with cogent reasons by the party concerned.

In the present case, the board cannot identify any exceptional circumstances which would justify the filing of the third to fifth auxiliary requests with letter of 23 March 2020.

3.3 Claim 1 of each of the third to fifth auxiliary requests contains the additional features as underlined in the following: "control circuitry configured for receiving one or more critical areas to be monitored at all times and determining a coverage pyramid set based at least in part on the critical areas".

The board does not agree with the appellant that the respective amendment was in itself not distinguishing but constituted a mere clarification, which was prompted by the board's observations on clarity in the communication under Article 15(1) RPBA 2020, and which thus constituted a legitimate response to the objections raised in the board's communication.

3.3.1 Firstly, the amendment in claim 1 of the third to fifth auxiliary requests, referring for the first time in the overall procedure to the aspect of "critical areas", constitutes a substantive amendment corresponding to a substantive change of the appeal case. It therefore cannot be considered to be a mere clarification of the claim.

3.3.2 Secondly, the remarks on clarity/interpretation under points 4 and 8 of the board's communication made reference to the expression "pyramid section", which is entirely unrelated to the "critical areas". All other observations of the board are consistent with the decision under appeal. There is hence nothing in the board's communication that could justify filing of new auxiliary requests in response thereto.

3.3.3 The amendment is consequently neither prompted by a finding of the board in the communication under Article 15(1) RPBA 2020 nor does it constitute a mere clarification in response to a potential clarity objection. The appellant did not indicate any further exceptional circumstances that could justify the filing of the third to fifth auxiliary requests after notification of the summons, nor are such exceptional circumstances apparent to the board.

3.3.4 In light of the above, the board exercised its discretion under Article 13(2) RPBA 2020 not to admit the third to fifth auxiliary requests into the appeal procedure.

4. Final remarks

Given that the subject-matter of claim 1 of the main request and of the first auxiliary request does not involve an inventive step in the sense of Article 56 EPC and considering further that the second to fifth auxiliary requests were not admitted into the appeal procedure, the board cannot accede to any of the requests of the appellant.

Order

For these reasons it is decided that:

The appeal is dismissed.