T 0170/84 (Two-part claim) of 7.7.1986

Summary of Facts and Submissions

I. European patent application No. 79 102 410.2 was filed on 12 July 1979 claiming priority from earlier applications filed in the Federal Republic of Germany on 13 July and 21 November 1978. On 28 October 1981 European patent No. 0 007 104 was granted for the application comprising 17 claims.

II. Notice of opposition having been filed by BMW AG Munich on 21 July 1982, the Opposition Division revoked the patent in its entirety on the grounds of lack of inventive step by a decision of 15 May 1984 based on DE-C-952 769.

III. On 19 July 1984 the patentee filed an appeal against this decision, paid the appropriate fee and submitted a Statement of Grounds, requesting that the decision be set aside and the patent be maintained on the basis of the documents filed on 18 February 1984 (new Claim 1 and new introduction to the description). The patentee considers that Claim 1's subject-matter is not only new but also involves an inventive step, and that to refer to and take into consideration DE-C-952 769 is a typical ex post facto analysis, since the latter in no way points to or suggests the solution offered by the invention.

IV. The opponent has not contested the patentee's argument.

V. In a communication of 8 October 1985 the Appeal Board rapporteur objected to the way Claim 1 was formulated. On 12 October 1985, in response to this communication, the patentee filed a new set of claims.

Claim 1 now reads as follows:

Fuel tank flap device covering a shallow recess (17) on the bodywork of a motor vehicle, with a hinge joint (11; 63; 85) for pivotally mounting a tank flap (10; 65; 82), which in its closed position covers a filler hole (e.g. 83) in the recess (17) and the recess (17) itself, and with a crank-lever arrangement (e.g. 27, 51) which secures the tank flap (10; 65; 82) in its open and closed positions, and in an intermediate position assumes an elongated state,

wherein one of the levers of the crank-lever arrangement (e.g. 27, 51) is constructed as a rigid lever (e.g. 51) rigidly connected to the tank flap (10; 65; 82) and the other lever is constructed as a bending rod (27; 60; 84) which is spring-extendible at right angles to its longitudinal extension, the two ends of which (25, 26; 77, 78; 94, 95) are pivotally connected either to the tank flap (65; 82) or the rigid lever (74; 87), or to a part (15, 16) fixed to the vehicle, and its middle portion (28; 61; 108) is pivotally connected either to a part (62, 104) fixed to the vehicle, or to the rigid lever (36) or the tank flap (10), the two ends (22, 23; 61, 66; 93, 108) of the crank- lever arrangement (e.g. 27, 51) being pivotally connected to the vehicle and, with the tank flap (10; 65; 82) closed, lying in the shallow bodywork recess (17) beneath the side of the tank flap (10; 65; 82) facing away from the vehicle exterior.

Reasons for the Decision

1. The appeal complies with Articles 106 to 108 and Rule 64 EPC and is therefore admissible.

2. Having examined the documents cited in the search report and those referred to by the opponent, the Board has reached the conclusion that none of these documents discloses the tank flap device according to the currently valid Claim 1. DE-C-952-769 does not relate to a tank flap device but to one designed to facilitate the opening of container lids, particularly those of boot lids on vehicles. The difference in nature between this device and the tank flap device according to Claim 1 shows the latter's novelty. The tank flap device according to US-A-2 865 653 was already taken into consideration in the examination preceding the grant of the patent. In that known device, with the tank flap closed, the two ends of the crank-lever arrangement do not lie beneath the side of the tank flap facing away from the vehicle exterior. This demonstrates the novelty of the device according to Claim 1. The latter is therefore new in relation to the state of the art presented.

3. The following comments relate to the question of inventive step:

3.1 A tank flap device for motor vehicles is known from US-A-2 865 653. This device has a hinge joint for pivotally mounting the flap, and a crank-lever arrangement which secures the flap in its open and closed positions and in an intermediate position assumes its elongated state, one of the levers of the crank-lever arrangement being constructed as a spring member and the other as a rigid lever. However, this tank flap device requires very considerable mounting depth (it is located in the rear fin of a large American car), since with the tank flap closed the crank-lever arrangement extends more or less vertically from the flap into the vehicle interior.

3.2 The patentee has based the currently valid, limited application on the problem of creating a tank flap device suitable for mounting on shallow bodywork recesses.

3.3 The problem set is resolved by a tank flap device according to Claim 1.

3.4 None of the documents cited during the proceedings suggests a crank-lever arrangement with both its ends, when the tank flap is closed, lying in the shallow bodywork recess beneath the side of the tank flap facing away from the vehicle exterior.

3.5 The Opposition Division's interpretation of DE-C-952 769 leading it to find that no inventive step was involved is incorrect. The document discloses a device intended to make it easier to open container lids, in particular boot lids on vehicles. The boot lid is pivotally mounted on the fixed wall of the boot via a hinge joint. A crank-lever arrangement secures the boot lid in its open position and makes it easier to close (by generating additional closing force). One of the levers of this crank-lever arrangement is constructed as a rigid lever and the other as a bending rod which is extendible at right angles to its longitudinal extension when the boot lid is opened or closed. This known device requires additional space for the crank-lever mechanism at the side of the opening to be closed and therefore is not suitable for use on tank recesses since the tank flap device including its mechanical parts is then usually located in the tank recess itself, so as to make it easy to replace, say after an accident, and to prevent dirt from the inside of the bodywork, such as the wheel housings, from penetrating the tank's filler neck.

3.6 The skilled person faced with the problem of creating a tank flap device suitable for mounting on shallow bodywork recesses would therefore not have looked to this solution, since it has the same drawback as the tank flap device according to US-A-2 865 653 in that it requires additional space at the side of the opening to be closed.

3.7 The devices disclosed in the other citations come no closer to the subject-matter of Claim 1 than those mentioned above. Even taking their teachings into account, therefore, the said subject-matter was not obvious.

3.8 The tank flap device according to Claim 1 therefore involves an inventive step within the meaning of Article 56 EPC.

4. The following remarks relate to the formulation of Claim 1:

4.1 Rule 29(1) EPC stipulates that claims should normally be formulated in two parts. According to Rule 29(1), second sentence, EPC a two-part claim should be chosen wherever it is appropriate. But Article 84 EPC reads as follows: "The claims shall define the matter for which protection is sought. They shall be clear and concise and be supported by the description." Where therefore a two-part claim would lead to a complex formulation it is no longer appropriate.

4.2 The present invention consists of a complex system of functionally interconnected parts where the inventive step lies in a change in their relation to each other. This change results in the hinge-joint and crank-lever arrangements, though largely already known, being suitable for mounting on shallow bodywork recesses.

4.3 The tank flap device in US-A-2 865 653 must be considered as the closest state of the art vis-à-vis the invention. However, since it is not suitable for mounting on shallow bodywork recesses, requiring considerable mounting depth, a two-part claim would entail a complex formulation. Although it has many features in common with the tank flap device of Claim 1, the inventive step lies in a change in their inter-relation.

4.4 DE-C-952 769 does not relate to a tank flap device and must therefore likewise be disregarded for the purposes of a two-part claim.

4.5 It is therefore inappropriate in this case to formulate Claim 1 in two parts as laid down in Rule 29(1).

4.6 It should be pointed out that the two-part claim prescribed in Rule 29(1) is intended to make it easier for the reader to identify which features required for establishing the claimed subject-matter of the invention, in combination with one another, belong to the state of the art. If a two-part formulation is not chosen, this must be sufficiently clear from the information concerning the state of the art to be contained according to Rule 27(1)(c) in the description. In the present case US-A-2 865 653 and DE-C-952 769 are taken sufficiently into account.

5. The currently valid version of Claim 1 can therefore stand.

6. The related Claims 2 to 17 of 12 October 1985 can readily be joined on to Claim 1, the terminology having been aligned, since they are directed to special embodiments of the tank flap device according to Claim 1.

7. The description has been brought into line with the amended wording of Claim 1 and defines the problem to be solved by the invention according to that Claim. In its currently valid form, therefore, the description is likewise suitable for maintaining the patent.

ORDER

For these reasons, it is decided that:

1. The contested decision is set aside.

2. The case is referred back to the department of first instance with the order to maintain the European patent on the basis of the following documents:

Description, page 1 - 3, filed on 16 February 1984

Description as granted, column 1, line 34 to end

Claims 1 - 17, filed on 12 October 1985

Drawings comprising Figures 1 - 22 of the granted patent.