T 0009/19 () of 29.9.2022

Summary of Facts and Submissions

I. Appeals were filed by each of the appellant (opponent 1) and the appellant (opponent 2) against the decision of the opposition division rejecting the oppositions against European patent No. 2 003 237. They each requested that the decision under appeal be set aside and the patent be revoked. As an auxiliary measure, oral proceedings were requested.

II. In its letter of response, the respondent (patent proprietor) requested that the appeals be dismissed or, as an auxiliary measure, that the patent be maintained in amended form according to one of auxiliary requests 1 to 7. Oral proceedings were also requested.

III. The following documents are relevant to the present decision:

OD6 WO 2008/138762 A1

IV. With letter dated 3 December 2020, opponent 1 withdrew its appeal.

V. On the 21 July 2021 the Board issued a summons to oral proceedings.

VI. With letter dated 31 August 2021 opponent 1 declared that it would not take part in the oral proceedings.

VII. With a communication containing its provisional opinion and dated 20 July 2022, the Board indicated inter alia that the ground for opposition under Article 100(c) EPC seemed to prejudice the maintenance of the patent as granted and that none of the amendments carried out in any of the auxiliary requests seemed to overcome this objection.

VIII. With letter dated 25 August 2022 the proprietor filed new auxiliary requests 3a and 8, the order in which the auxiliary requests were to be considered being as follows: auxiliary request 8, 3, 3a, 1, 2, 4, 5, 6, and 7.

IX. With letter dated 21 September 2022 the proprietor declared that it would not participate in the oral proceedings.

X. Oral proceedings before the Board were held on 29 September 2022 by videoconference only in the presence of appellant-opponent 2.

XI. Claim 1 of the main request reads as follows (according to the feature breakdown in annex BEl filed by opponent 1 with its grounds of appeal):

"Laundry washing machine comprising

1a) a dispenser (6) for dispensing detergent products, softeners or fresheners,

1b) wherein the dispenser (6) comprises a drawer (7) housed in a front wall (4) of the machine (1) and

1c) comprising a first section (10) adapted to be loaded with at least a first detergent product sufficient for one wash, so as to allow using said laundry washing machine as a conventional manually loaded dispenser machine,

1d) wherein said drawer (7) comprises an outer handle,

1f) as well as a distinct second section (11) adapted for housing at least a second detergent product sufficient for a given number of washes, so as to allow using said laundry washing machine also in an automatic dispensing mode."

XII. The wording of claim 1 of each of the auxiliary requests 8, 3, 3a, 1, 2, 4, 5, 6, and 7 is annexed at the end of this decision.

XIII. The arguments of the opponents as far as relevant for the decision may be summarised as follows:

Main request - Article 100(c) EPC

Feature 1c)

Feature 1c) did not correspond to the original feature "comprising a first section (10) for containing at least a first detergent product sufficient for one wash". Only a more specific configuration containing three compartments in combination with the loading of a detergent product was disclosed on page 3, lines 18-27 of the description as originally filed, which was given as a basis by the proprietor.

Feature 1d)

The passages given by the proprietor as basis for feature 1d) all belonged to the embodiment of Figure 3, or a variation of it, comprising the handle 8 which is defined on page 3 specifically as being flush with the front wall. The passages on pages 5 and 6 referred to the use of the same handle 8 as described on page 3.

Admittance of auxiliary requests 8 and 3a

The appellant further stated that auxiliary requests 8 and 3a should not be taken into account as there were no exceptional circumstances to admit them into the proceedings. The objections that were being attempted to overcome were already made in the opposition proceedings and were maintained throughout the appeal proceedings.

Auxiliary requests 3, 1, 2, 4, 5, 6 and 7

The appellant further stated that none of the amendments performed in these requests overcame all the objections regarding the main request made under Article 100(c) EPC.

XIV. The arguments of the respondent-proprietor as far as relevant for the decision may be summarized as follows:

Main request - Article 100(c) EPC

Feature 1c)

Several passages in the description and claim 5 as originally filed led the skilled person to the technical teaching that the first section was designed such that it was for containing at least a first product sufficient for one wash and having several compartments in general as defined in claim 1.

Feature 1d)

The feature 1d) was supported by page 3, lines 18 to 21 of the application as originally filed. This feature was not functionally linked to the feature that the handle is flush. This was also corroborated by the passages of page 5, lines 23-24 and page 6, lines 3-7 in which a handle was mentioned without specifying it as being flush and by the Figures which showed a handle with which the user could open the drawer using the handle without showing it flush in a closed position.

The feature 1d) was added to claim 1 only in an attempt to overcome an Article 54(3) EPC objection regarding OD6 and did not provide a technical contribution, i.e. it was not essential for the subject-matter of claim 1.

The missing feature "flush" also did not provide a technically essential contribution to the invention and could be left out.

The feature "outer handle" was an undisclosed disclaimer since it excluded washing machines with a drawer but having no handle.

The admittance of auxiliary requests 8 and 3a

Auxiliary requests 8 and 3a should be taken into account since the objections that they tried to overcome were introduced by amendments made before the convergency criterion in the RPBA 2020 entered into force and the current case law for intermediate generalisation (according to the proprietor "paste and copy" criterion) changed, which was after the time of filing of the grounds of appeal. Both requests were convergent and did not give cause for a technically changed situation.

Reasons for the Decision

1. Main request - Article 100(c) EPC

Feature 1c)

1.1 Claim 1 of the main request was amended during the examining proceedings inter alia to include the feature 1c) "a first section (10) adapted to be loaded with at least a first detergent product sufficient for one wash" instead of the original "a first section (10) for containing at least a first product sufficient for one wash".

1.2 The respondent-proprietor argued that according to the originally filed description the washing machine of the invention was "designed to permit both manual loading of detergents at each wash, and automatic loading" [see page 2, lines 13-14] and "the section 10 is for powdered or liquid detergent" [see page 3, 1ines 22-26] and generally the dispenser was for detergent products [see page 3, 1ines 14-15]. They argued further that the "section 10 is (provided) to load detergents or similar manually" [see page 5, 1ines 26 - page 6, 1ine 1].

According to the respondent-proprietor, these passages should be understood in the context of what is disclosed in the original application to be conventional (see page 1, lines 12-17 and claim 5 as filed). In this context the technical teaching for the skilled person was that the first section was designed such that it was for containing at least a first product sufficient for one wash and having several compartments in general as defined in claim 1.

1.2.1 This argument is not persuasive. Claim 1 does not define any compartment. As already stated in item 1.2 of the Board's preliminary opinion, the passages on page 3, lines 14-15 and 22-26, as well as the passage bridging pages 5 and 6 of the description as originally filed given by the respondent as a basis for the amendment only disclose a more specific configuration with a first section having specifically three compartments (and not more generically only a first section (10)) adapted to be loaded with at least a first detergent product for one wash as defined in feature lc).

The further passage cited by the proprietor on page 2, lines 13-14 discloses generally a dispenser designed to permit the manual loading of detergents as an alternative to automatic loading using specifically long-term cartridges. However, this passage does not describe any section of a dispenser such that it does not provide a basis for the feature 1c) which defines a first section of a dispenser.

In addition, page 1, lines 12-17 and originally filed claim 5 disclose both a dispenser having a first section divided into compartments. Thus, these passages provide no hint, let alone a basis, from which the skilled person could directly and unambiguously derive the more general feature "a first section (10) adapted to be loaded with at least a first detergent product sufficient for one wash" which does not refer to compartments.

The same applies to the other passages cited by the respondent-proprietor. None of these passages provides a basis for the skilled person to directly and unambiguously derive the loading with at least a first detergent product sufficient for one wash generally in a first section, rather than in compartments thereof.

Feature 1d)

1.3 Claim 1 of the main request was also amended to include inter alia the feature 1d) "said drawer (7) comprises an outer handle".

1.4 The proprietor argued that page 3, lines 18 to 21 of the application as originally filed provided a basis for feature 1d) and that this feature was not functionally linked to that of the handle being flush with the front wall 4 when the drawer is in the closed position. According to the proprietor, this was also corroborated by the passages on page 5, lines 23-24 and page 6, lines 3-7 in which a handle for opening and closing the drawer was mentioned without specifying it as being flush and by the Figures which showed a handle with which the user could open the drawer without showing it flush in a closed position.

1.4.1 The Board does not find these arguments persuasive. As stated in item 1.4.1 of its preliminary opinion, the passages cited by the respondent (page 3, lines 19-21, page 5, lines 23-25, and page 6, lines 3-7) all belong to the embodiment of Figure 3 or a variation of it comprising the same handle 8 which is defined, on page 3, as specifically being flush with the front wall. The Figures 1-3 only show the drawer in its open position such that nothing can be derived regarding the closed position thereof, but the passage on page 3, lines 18-21, of the description states explicitly that this is the case for the drawer of Figures 1-3.

However, the claim defines neither the position (flush with the outer wall as described on page 3) nor the function (for opening and closing the drawer as described on pages 5 and 6) to which the proprietor refers.

1.4.2 The proprietor further argued that the amendment did not constitute an intermediate generalization as the feature 1d) was not inextricably linked to the other features of the embodiment.

The Board does not accept this argument. As stated in item 1.4 of its preliminary opinion, without the expression "flush with the front wall when in closed position" the term "outer" in the feature 1d) "outer handle" could refer to simply protruding from the slide-in body of the box in any direction. The missing expression therefore defines the position of the handle, i.e. it is a specific technical characteristic of the handle with which it has an intrinsic functional and structural relationship.

1.4.3 The proprietor further argued that the handle was not technically important to a degree that the proprietor felt a need to include the handle in the original claims and that the feature 1d) was added to claim 1 only in an attempt to overcome an Article 54(3) EPC objection with respect to OD6. The feature did not provide a technical contribution, i.e. it was not essential for the subject-matter of claim 1. According to the proprietor, the missing feature "flush" did not provide a technically essential contribution to the invention either, and could thus also be left out.

The Board does not accept this argument either. In its decision G 2/10, and summarising long standing case law of the Boards of Appeal, the Enlarged Board of Appeal found that the test to be applied is whether the skilled person would, using common general knowledge, regard the claimed subject-matter as explicitly or implicitly, but directly and unambiguously, disclosed in the application as filed (Reasons 4.5.4).

The proprietor has not provided any reasons as to why the Board should deviate from this criteria and the Board cannot find one either. The degree of relevance/essentiality is thus not relevant for assessing whether an amendment introduces subject-matter which extends beyond the content of the application as filed or not.

1.4.4 Still in the context of the feature 1d) being added to claim 1 in an attempt to delimit claim 1 against OD6 as state of the art under Article 54(3) EPC, the proprietor argued that the feature 1d) was an undisclosed disclaimer since it excluded washing machines with a drawer but having no handle.

The Board does not accept this argument either. The feature "said drawer (7) comprises an outer handle" is a positive limiting feature in the sense that it further specifies the drawer by attributing it further characteristics/features, i.e. that the drawer comprises an outer handle. It is not an amendment to a claim resulting in the incorporation therein of a negative technical feature, e.g. stating what the drawer is not or does not comprise.

1.5 At least these two amendments made before grant to claim 1 (now forming claim 1 of the main request) therefore result in subject-matter which extends beyond the content of the application as originally filed, such that the ground for opposition under Article 100(c) EPC is prejudicial to maintenance of the patent as granted. The main request is thus not allowable.

2. Auxiliary requests 3, 1, 2 and 4 to 7

2.1 As the Board stated already in item 4.2 of its preliminary opinion, none of the amendments carried out to any of the auxiliary requests 3, 1, 2 or 4 to 7 overcomes the objections under Article l00(c) EPC discussed above under item 1.

2.2 Claim 1 of auxiliary request 3 has been amended with regard to claim 1 of the main request by the introduction of the features of granted claims 5 and 7

"wherein the first section (10) is divided into a number of compartments (10a, 10b, 10c), each for housing a respective first product" and

"wherein the second section (11) is located behind the first section (10) in an opening direction of the drawer (7) substantially perpendicular to the front wall (4)", respectively.

2.3 Claim 1 of auxiliary request 1 has been amended with regard to claim 1 of the main request by the introduction of the features of granted claim 8

"wherein the drawer (7) is movable between a closed position, a first extracted position, in which only the first section (10) projects from the front wall (4), and a second extracted position, in which both the first and second section (11) project from the front wall (4)."

2.4 Claim 1 of auxiliary request 2 has been amended with regard to claim 1 of auxiliary request 1 by the introduction of the features of granted claim 9 "wherein the laundry washing machine further comprises a stop device (20) for arresting the drawer (7) in the first extracted position when opening the drawer (7)".

2.5 Claim 1 of auxiliary request 4 has been amended with regard to claim 1 of the main request by the introduction of the features of granted claims 2 and 3 "wherein the second detergent product is housed in a relative container, in turn housed in the second section" and "wherein the container (12) is removable", respectively.

2.6 Claim 1 of auxiliary request 5 has been amended with regard to claim 1 of the main request by the introduction of the features of granted claim 6 "wherein the first section (10) is divided into a number of compartments (10a, 10b, 10c), each for housing a respective first product".

2.7 Claim 1 of auxiliary request 6 has been amended with regard to claim 1 of the main request by the introduction of the features of granted claim 4 "wherein the container (12) is refillable and formed integrally with the second section (11)".

2.8 Claim 1 of auxiliary request 7 has been amended with regard to claim 1 of the main request by the deletion of the softeners and fresheners from the list of possible products to be dispensed.

2.9 The Board finds that the none of the specific amendments made to claim 1 of these requests concerns the feature "outer handle" discussed above under item 1.4 and they thus fail to address the objections already found to result in subject-matter extending beyond the content of the application as originally filed. The respondent also did not put forward additional arguments as to why these requests overcame the objections discussed above under item 1.

2.10 As a consequence, the subject-matter of claim 1 of each of the auxiliary requests 3, 1, 2 and 4 to 7 fails to meet the requirement of Article 123(2) EPC for at least one of the reasons found under Article 100(c) EPC above to prejudice maintenance of the patent according to the main request. Auxiliary requests 3, 1, 2 and 4 to 7 are therefore not allowable.

3. Auxiliary requests 8 and 3a

3.1 Auxiliary requests 8 and 3a were filed after notification of the summons to oral proceedings in reply to the preliminary opinion of the Board.

3.2 According to Article 13(2) RPBA 2020, "[a]ny 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".

3.3 The Board can see no exceptional circumstances in the present case justifying the filing of the new requests after notification of the summons to oral proceedings. The objections under Article 100(c) EPC regarding the features 1c) and 1d) had been raised already in the opposition proceedings (see items II.3.1.5 and II.3.1.8) and had been raised again with the appellant's grounds of appeal. Even though the opposition division had found in the respondent's favour on this issue, the Board's different opinion does not constitute an exceptional circumstance which can justify an amendment to the proprietor's appeal case (indeed this is the purpose of the appellant's appeal).

3.4 The proprietor argued that auxiliary requests 8 and 3a should be allowed since the objections that they tried to overcome were introduced by amendments made prior to the current case law for intermediate generalisation (according to the proprietor "paste and copy" criterion) was introduced, which was after the time of filing of the grounds of appeal.

The Board does not accept this argument. As stated above under item 1.4.3, the case law of the Boards of Appeal relating to Article 123(2) EPC has been clearly defined since publication of G 2/10. The present Board does not find any change or new relevant criterion to have been added since this Enlarged Board of Appeal decision that could constitute an exceptional circumstance justifying the amendment of the proprietor's appeal case after notification of the summons to oral proceedings.

Moreover, the fact that the new Rules of Procedure (RPBA 2020) only entered into force after the respondent-proprietor filed its reply to the grounds of appeal, does not amount to an exceptional circumstance in this case. The respondent-proprietor filed its reply to the grounds of appeal in September 2019, meanwhile the summons were notified only in July 2021. Thus, the respondent-proprietor could and should have filed the new auxiliary requests in reaction to the Appellant's grounds of appeal before. Furthermore, even under the old Rules of Procedure of the Boards of Appeal (RPBA 2007) Article 12, 13 RPBA 2007 did not allow the parties to hold back their submissions but required to react without delay.

3.5 For the above reasons, the Board exercised its discretion under Article 13(2) RPBA 2020 not to take into account auxiliary requests 8 and 3a.

4. In the absence of any request which meets the requirements of the EPC, the patent has to be revoked.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.