T 1847/17 () of 23.4.2020

Summary of Facts and Submissions

I. The appeal lies from the decision of the examining division to refuse European Patent application No. 11 772 315.5.

II. In its decision the examining division held that the subject-matter of claim 1 of each request filed in electronic form on 6 February 2017 did not fulfil the requirements of Article 123(2) EPC.

III. The applicant (hereinafter: the "appellant") filed an appeal against this decision.

IV. In response to a communication of the Board pursuant to Rule 100(2) RPBA, the appellant filed with a letter dated 23 January 2019 a new main request and an auxiliary request 1, which replaced all previously filed requests.

V. In response to a further communication the appellant informed the Board that it did not maintain the main request filed on 23 January 2019 and did not maintain the request for oral proceedings.

VI. The final request of the appellant was that the decision be set aside and that a patent be granted on the basis of the claims of the new main request filed with a letter dated 29 October 2019.

VII. Claim 1 of the main request is based on claim 1 as filed with the following amendments indicated in bold:

"An arrangement for a screen with a number of sections (1-3) which are foldable and/or pivotal in relation to one another and which form a screen-off, which comprises a fixed section (1) and two sections (2, 3) pivotal in relation thereto, or one fixed section and a number of foldable or pivotal sections in relation to one another, which are pivotally mounted on the fixed section, the fixed section (1) being mounted on a foot (7), characterised in that the foot (7) includes a supporting base plate (9), [deleted: and ]that the base plate (9) is covered with a hood (36) for preventing direct contact of at least the upper side of the base plate (9) and possibly also the major portion of the edges of the base plate (9), and that the base plate is substantially rectangular (10, 11, 12, 13) and has a bight (17) extending from the corner of the longitudinal side in towards the centre of the base plate, and that at least one counterweight (18,19,20,21,47,48) is fixed at each short side (14, 15) of the rectangular base plate (9)."

Dependent claims 2 to 7 of the main request define preferred embodiments of the arrangement of claim 1.

VIII. The following documents have been cited in the International Search Report:

D1: DE 20 2005 010 245 U1;

D2: WO 2004/071251 A1;

D3: US 4,516,620;

D4: CA 2 233 826 A1;

D5: DE 296 18 316 U1;

D6: US 6,305,659 B1.

IX. The appellant's arguments may be summarised as follows.

The amendments to claim 1 are based on the technical teaching of claims 1, 2, 3 and 7 of the application as originally filed.

D1 did not disclose a screen comprising a base plate having a bight.

D1 did not provide any hint that the screen could be stabilised against tilting forces by providing the base plate with counterweights.

Reasons for the Decision

1. Scope of appeal

Under Article 111(1), second sentence, EPC, the Board has the power to examine whether the application or the invention to which it relates meets the requirements of the EPC.

In the present case the appellant requests the grant of a patent and therefore is interested in a final decision on the case. This request concurs with the general interest in bringing proceedings to a close within a reasonable period of time.

Furthermore, novelty and inventive step were comprehensively assessed during the proceedings before the examining division.

Therefore the Board considers it appropriate to deal also with novelty and inventive step in the present case, although the examining division decided only on the allowability of the amendments.

2. Main request - Article 123(2) EPC

Claim 1 is based on the wording of claims 1, 2, 3 and 7 of the application as originally filed.

The remaining dependent claims correspond to dependent claims as originally filed wherein the dependency has been adapted.

Hence claims 1 to 7 fulfil the requirements of Article 123(2) EPC.

3. Article 54 EPC

D1 is the only document which has been cited in the context of novelty by the examining division.

It discloses an arrangement for a screen with a number of sections which are foldable and/or pivotal in relation to one another and which form a screen-off (figures 1 to 4)?, which comprises a fixed section (2) and two sections (3,4) pivotal in relation thereto, or one fixed section and a number of foldable or pivotal sections in relation to one another (figure 6, figure 8)?, which are pivotally mounted on the fixed section, the fixed section being mounted on a foot, wherein the foot includes a base plate (bottom of box 1). The base plate is provided with a box forming a hood and containing pieces of sports equipment (paragraph [0012] and [0026]).

The subject-matter of claim 1 differs from the arrangement according to D1 in that the base plate has a bight extending from the corner of the longitudinal side in towards the centre of the base plate and in that counterweights are fixed at each short side of the rectangular base plate.

Therefore the subject-matter of claim 1 is novel in view of D1.

4. Article 56 EPC

4.1 The application relates to an arrangement for a screen for use in medical care (page 1, lines 7 to 11).

D1 has been cited in the International Preliminary Report on Patentability as the closest prior art. Moreover it is the only document which has been cited in the substantive examination before the examining division.

It discloses a screen for a sports hall, which comprises a carriage for sport equipment as the supporting base.

The Board cannot see any reason why the skilled person would start from a screen for a sports hall when aiming at a screen for use in medical care where the size of the arrangement is significantly different.

Should the skilled person nevertheless start from D1 as the closest prior art, the objective technical problem could be formulated as the provision of a screen arrangement which requires less space.

Starting from D1 the skilled person has no motivation to reduce the size of the support base by providing a bight therein and to fix counterweights at the short side of the carriage. The required modification is also not obvious within routine modification, since in a sports hall the space is not critical, the carriage for the sport equipment having a bight would offer less storage space and would be more difficult to construct. Furthermore, by reducing the weight of the support base by forming the bight, the necessity of further counterweights would not motivate the skilled person to consider these modifications.

Starting from D1 the subject-matter of claim 1 is therefore not obvious.

4.2 WO 2004/071251 A1 (D2) discloses a mobile screen for screening a medicine cabinet or for use in an old peoples' home (page 1, lines 24 to 27).

D2 therefore deals with the same general problem as the application and is a realistic starting point for the assessment of inventive step.

D2 discloses a screen (2) which is flexible and may be extended as desired (claim 1). The screen can be rolled up on a vertical axis with a return spring (claim 1). The support base has a hexagonal shape (figure 1).

The subject-matter of claim 1 differs in that the screen comprises a number of sections which are foldable or pivotable in relation to one another, in that the base plate has a rectangular shape and has a bight extending from the corner of the longitudinal side in towards the centre of the base plate and in that the counterweight are fixed at each short side of the rectangular base plate.

Thus, the screen arrangement defined in claim 1 of the main request differs to a great extent from the arrangement for a screen disclosed by D2.

The objective technical problem can be formulated as the provision of a screen which requires less space.

Neither D2 nor any other document cited in the search report provides an incentive to change the screen arrangement according to D2 completely.

The subject-matter of claim 1 is therefore not obvious when starting from D2.

4.3 The remaining documents cited in the search report are even less relevant than D1 and D2:

D3 discloses a privacy screen module that is free standing and may be joined with similar modules to make up a screened area (claim 1, figures 1 and 3).

D4 discloses a variable length mobile privacy screen comprising two panels disposed in side by side parallel relationship and slidably connected to allow horizontal movement of the panels to vary the length of the screen (claim 1, figure 1).

D5 discloses a free-standing room divider element (claim 1, figure 1).

The subject-matter of claim 1 differs form the disclosure in these documents in that the screen comprises a number of sections which are foldable or pivotable in relation to one another, in that the base plate has a rectangular shape and has a bight extending from the corner of the longitudinal side in towards the centre of the base plate and in that the counterweights are fixed at each short side of the rectangular base plate.

D6 discloses a support intended in particular for a surgical microscope (claim 1, figure 1) and therefore does not relate to a screen arrangement as defined in claim 1.

4.4 Hence it can be concluded that the subject-matter of claim 1 fulfils the requirements of Article 56 EPC.

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 on the basis of claims 1 to 7 as filed with the letter dated 29 October 2019 and a description to be adapted thereto.