T 0060/99 (Mower-Crusher/MAASLAND) of 26.4.2001

Summary of Facts and Submissions

I. An opposition was filed against the European patent No. 343 699. By the decision of the opposition division dispatched on 12 November 1998, the patent was maintained in an amended version.

The opposition division held that the subject-matter of this Claim 1 involved an inventive step having regard to the following documents:

D0: GB-A-2 079 126;

D1: Leaflet of the firm Maschinenfabriken Bernard Krone GmbH "Front-Scheibenmäher AFL 241", NIE 5 - 11.87. (two pages);

D2: Leaflet of the firm Maschinenfabriken Bernard Krone GmbH "Grossflächen-Scheibenmäher AMG 281", NIE 20 - 11.87 (four pages).

II. On 12 January 1999 the opponent (hereinafter appellant) filed an appeal against this decision and simultaneously paid the appeal fee. The statement setting out the grounds of appeal was received on 18. February 1999.

During the appeal proceedings the appellant submitted inter alia the following documents:

D5: US-A-4 182 099;

D6: US-A-4 724 661.

III. Oral proceedings were held on 26 April 2001.

During the oral proceedings the respondent (proprietor of the patent) filed an amended Claim 1 which reads as follows:

"1. An agricultural machine comprising a mowing unit (24) and a frame for connecting the mowing unit (24) to the lifting hitch at the front side of a tractor, said frame being provided with a coupling element (1) to engage the lifting hitch, two substantially parallel lower supporting beams (11) which at substantially the same height are connected to said coupling element (1) capably of pivoting in a vertical plane near the lower end thereof, at least one upper supporting beam (9) connected near the upper end of the coupling element (1) capably of pivoting in a vertical plane, a carrier frame (13) for the mowing unit (24), which carrier frame (13) is connected to said lower supporting beams (11) and pivotally connected to said upper supporting beam (9), the connections of the coupling element (1) with said lower supporting beams (11) and said upper supporting beam (9) being, seen in the direction of operative travel, behind the connections of the carrier frame (13) with said lower supporting beams (11) and said upper supporting beam (9), and at least one weight relief spring (22) providing a weight relief of the agricultural machine which is, within a certain range in height, substantially independent of the position of the carrier frame (13) relative to the lifting hitch, the said position then being variable, characterized in that the lower supporting beams (11) are pivotally connected to the carrier frame (13) and the weight relief spring (22) is provided between the coupling element (1) and the carrier frame (13), while the agricultural machine further comprises a crusher device (25) which is located partly below and partly within the frame and which is connected to the carrier frame (13)."

IV. During the oral proceedings the appellant argued that the subject-matter of Claim 1 lacks novelty having regard to the prior art known from document D5.

On the subject of inventive step, the appellant argued that the skilled person, starting from an agricultural machine according to document D6, on the basis of his general knowledge and having regard to document D5, would arrive at the subject-matter of Claim 1 without exercising any inventive skill.

V. The appellant requested that the decision under appeal be set aside and that the patent be revoked.

The respondent requested that the decision under appeal be set aside and that the patent be maintained on the basis of the following documents:

Claims: No. 1 to 17 as submitted in the oral proceedings;

Description: columns 1 and 2 as submitted in the oral proceedings; columns 3 to 10 as granted;

Drawings: Figures 1 to 4 as granted.

The respondent also requested that the documents filed by the appellant during the appeal proceedings be not introduced into the proceedings.

Reasons for the Decision

1. The appeal is admissible.

2. The subject-matter of Claim 1

2.1. Claim 1 is directed to an agricultural machine having the following features:

(A) the agricultural machine comprises a mowing unit (24),

(B) the agricultural machine comprises a frame for connecting the mowing unit (24) to the lifting hitch at the front side of a tractor,

(B1) the frame is provided with a coupling element (1) to engage the lifting hitch,

(B2) the frame is provided with two substantially parallel lower supporting beams (11),

(B21) the lower supporting beams (11) at substantially the same height are connected to the coupling element (1) capably of pivoting in a vertical plane near the end thereof (i.e. near the end of the coupling element),

(B3) the frame is provided with at least one upper supporting beam (9),

(B31) the upper supporting beam (9) is connected near the upper end of the coupling element (1) capably of pivoting in a vertical plane,

(B4) the frame comprises a carrier frame (13) for the mowing unit,

(B41) the carrier frame is connected to the lower supporting beams,

(B42) the carrier frame is pivotally connected to the upper supporting beam (9),

(B5) the connections of the coupling element with the lower supporting beams (11) and with the upper supporting beam (9) are, seen in the direction of operative travel, behind the connections of the carrier frame (13) with the lower supporting beams and the upper supporting beam,

(B6) the frame is provided with at least one weight relief spring (22) providing a weight relief of the agricultural machine,

(B61) the weight relief is, within a certain range in height, substantially independent of the position of the carrier frame relative to the lifting hitch,

(B43) the position of the carrier frame relative to the lifting hitch is variable,

(B22) the lower supporting beams (11) are pivotally connected to the carrier frame (13),

(B62) the weight relief spring is provided between the coupling element (1) and the carrier frame (13),

(C) the agricultural machine comprises a crusher device (25),

(C1) the crusher device (25) is located partly below and partly within the frame,

(C2) the crusher device is connected to the carrier frame (13).

2.2. Feature B6 has to be construed in conjunction with features B62, A, C and C2. That means that the relief spring provides a weight relief of the carrier frame 13 with respect to the coupling element 1. This also means that the relief spring does not affect the coupling operation (as well the decoupling operation) of the machine to the tractor.

It has to be noted that the present Claim 1 differs from the independent claim upon which the decision under appeal is based in that feature C2 was added. Feature C2 makes it clear that the relief spring provides a weight relief of both the mowing unit 24 and crusher device 25.

2.2.1. The appellant argued that Claim 1 contains an inconsistency in so far as feature B6 relates to a "first" spring providing weight relief of the agricultural machine with respect to the tractor (for instance a spring arranged between the tractor and the frame), while feature B62 relates to a "second" spring which provides a weight relief of the carrier with respect to the coupling element and therefore cannot provide a weight relief of the whole agricultural machine with respect to the tractor.

Although it seems that the wording of Claim 1 - as such - could be considered as being unclear in that respect, the board, however, cannot accept this interpretation of Claim 1, since feature B62 (specified in the characterising portion of the claim) refers to the "the weight relief spring" (emphasis added), i.e. to the spring referred to in the pre-characterising portion of Claim 1, namely in feature B6. Furthermore, the interpretation of the appellant is not supported at all by the description of the patent which describes embodiments provided with relief springs arranged solely between the carrier frame and the coupling element and which refers secondly to a problem consisting in the elimination of the disadvantages in coupling a machine to the tractor when the relief spring is arranged between the carrier frame and the tractor (see particularly column 1, lines 32 to 41).

2.3. Feature C1 refers to the frame. According to features B1, B2, B3 and B4 the frame comprises the carrier frame, the coupling element, at least one upper supporting beam and two lower supporting beams. According to the description and the drawings of the patent, the carrier frame - due to the fact that it supports the cutter bar of the mowing unit - is provided with a transverse structural element (i.e. the carrier beam 43) and the two lower supporting beams are arranged each on a side of the machine (see Figure 2). Thus, it has to be understood that the elements of the frame (i.e. the lower supporting beams, the upper supporting beam, the carrier frame and the coupling element) define a space. Having regard to the drawings (Figures 1, 3 and 4), it can be considered that the crusher device is located "partly below and partly within" this space.

2.4. Feature B makes it clear that the frame of the agricultural machine is suitable for being connected to the lifting hitch at the front side of a tractor, i.e. that Claim 1 relates to a so called "front mounted mower-crusher".

Moreover, feature B1 makes it clear that the coupling element is directly connected to the front lifting hitch of the tractor.

2.5. Feature B5 - in so far as it relates to the position of the carrier frame carrying the mower unit on the one hand and the coupling element on the other hand - defines (kinematically and dynamically) the relationship between the upward movement of the carrier frame and the forces acting on the mower unit during the operation of the machine. In other words, feature B5 makes it clear that Claim 1 relates to a so called "pushed mower".

3. The amendments

3.1. Claim 1 differs from Claim 1 as granted in that features B5 and C2 have been added. Feature B5 can be derived from the drawings of the application as filed. Feature C2 can be derived from the description of the application as filed (page 8, lines 11 and 12).

3.2. The amendments of the description concern its adaptation to the amended Claim 1.

3.3. The amendments to the patent do not contravene Article 123 EPC.

4. Procedural matter

4.1. In the decision under appeal the subject-matter of Claim 1 was considered as involving an inventive step having regard to the combination of document D0, which was considered as the closest prior art, with either document D1 or document D2.

Document D1 concerns a mower which has to be mounted on the front side of a tractor, while document D2 relates to a rear mounted mower. Both these machines are provided with a coupling element for coupling them to the tractor, this coupling element being connected to the frame carrying the mowing unit by means of a linkage, wherein the connections of the coupling element with the linkage, seen in the direction of operative travel, are before the connections of the linkage with the carrier frame. In other words, documents D1 and D2 relate to a so called "drawn mower".

4.2. With respect to documents D1 and D2, the opposition division held that the skilled person would not apply a teaching concerning a mower of the "drawn" type to the machine according to document D0, which is of the "pushed" type.

4.3. Both document D5 and document D6 concern an agricultural machine in which the mower unit is of the "pushed" type. Therefore, the filing of documents D5 and D6 can be considered as a reaction of the appellant to the findings of the opposition division.

Therefore, documents D5 and D6 are admitted into the proceedings.

5. Novelty

5.1. With respect to the newly filed Claim 1, novelty was disputed only with regard to document D5.

This document (see particularly Figures 1 and 2 and the corresponding parts of the description) discloses an agricultural machine comprising a mowing unit (cutter bar assembly 66) and a frame for connecting the mowing unit (66) to the hitch (drawbar 50) at the rear side of a tractor, the frame being provided with supporting wheels (62), with a coupling element (i.e. the main frame 10 comprising the tongue support member 34) connected to a tongue (14) for hitching to a towing tractor, with two substantially parallel lower supporting beams (lower links 106), the lower supporting beams (106) at substantially the same height being each connected to a wheel support arm (54) which is connected to the coupling element such that the lower supporting beams (106) are capable of pivoting in a vertical plane, with two upper supporting beams (upper links 104), the upper supporting beams (104) being connected to the coupling element (main frame 10) and being capable of pivoting in a vertical plane (around the pin 26), with a carrier frame (header assembly 16 - hood 74) for the mower unit, the carrier frame being connected to the lower supporting beams (106) and pivotally connected to the upper supporting beam (104), the connections of the coupling element (main frame 10) with the lower supporting beams and with the upper supporting beams are, seen in the direction of operative travel, behind the connections of the carrier frame with the lower supporting frame and the upper supporting beams, and with two weight relief springs (112) providing a weight relief of the mowing unit, which is, within a certain range in height, substantially independent of the position of the carrier frame relative to the lifting hitch, the said position being variable, wherein the lower supporting beams (106) are pivotally connected to the carrier frame, the weight relief springs (112) are provided between the coupling element (10) and the carrier frame, and the agricultural machine comprises a crusher device (68) located within the frame and which is connected to the carrier frame.

5.2. Having regard to the above comments, document D5 concerns a "rear-mounted mower-crusher". Therefore, the subject-matter of Claim 1 differs from the machine according to document D5 at least in that the frame is suitable for connecting the mowing unit (24) to the lifting hitch at the front side of a tractor (see feature B).

5.2.1. On the subject of the information content of document D5, the appellant argued as follows:

The fact that the drawings and the description of this document refer only to a specific embodiment concerning a "rear mounted" machine does not imply that the information content of the document excludes "front mounted" machines. More particularly, since Claim 1 of document D5 is directed to a mobile impeller type mower-conditioner without specifying where the mower-conditioner is mounted, the specific embodiment to which the drawings and the description refer does not limit the information content of the whole document D5. The claims of a patent document represent its most important information source, this source having a high generalisation level. Since Claim 1 of document D5 does not refer to a "rear mounted" mower-conditioner, document D5 implicitly also discloses a "front mounted mower-conditioner".

5.2.2. The board cannot accept this argument of the appellant for the following reasons:

(i) The primary function of the description and drawings is to disclose the claimed invention so that at least one way of carrying it out is indicated.

The independent claim of a patent document normally represents a generalisation of what is described in detail in the description by referring to the drawings. Its primary function is to indicate the matter for which protection is sought in terms of technical features. The definition of the extent of protection (scope of the claim) is done by formulating a concept, covering not only the specific embodiment described in detail in the description but also other specific embodiments, which may differ from the item described in detail in the document but each having all the features of the concept defined by the claim.

(ii) A claim - in so far as it defines a concept - is also (in itself) an information source. However, the scope of the claim and its information content must be distinguished from one another. The information content of the claim relates to the "intension" of the concept, i.e. to the totality of features which are common to a plurality of individual items and thus permit all these individual items to be conceptually embraced and the concepts to be distinguished from one another. The scope of the claim relates to the "extension" of the concept as it is formulated, i.e. to the totality of the individual items having all the features of the concept (cf. DIN 2330 "Begriffe und Benennungen. Allgemeine Gründsätze", March 1979, sections 3.3. and 3.4 and also T 378/94, section 3.1.1).

(iii) In the present case, Claim 1 of document D5 may on the face of it be read as defining a concept which is more general than the "rear-mounted" mower-conditioner described in the description and the drawings but without disclosing any particular example thereof. In other words, Claim 1 does not diclose either a front-mounted or a rear-mounted mower-conditioner, although its scope may include them .

(iv) In any case, according to the established case law of the boards of appeal, the disclosure of a feature must be immediately and unambiguously derivable from the document in question to be accepted for novelty purposes.

5.3. Since neither the description, nor the claims, nor the drawings of document D5 discloses a rear-mounted mower-conditioner, the subject-matter of Claim 1 of the patent in suit must be considered novel with respect to document D5.

6. Inventive step

6.1. Document D6 (see particularly Figures 1 and 2) discloses a crop harvesting header (15) mounted on a self-propelled crop harvesting machine which is provided with a wheeled frame (12), provided with the following features:

- the header is connected to the wheeled frame (12) of the machine;

- the header comprises a mowing unit (cutter bar 16) and a crusher device (conditioning rolls 18),

- the header comprises a first header frame (section 20) and a second header frame (section 30),

- the first header frame is provided with coupling elements, i.e. with two upper links (22) and two lower links (24), for connecting the first header frame to the front side of the wheeled frame (12) of the machine,

- the second header frame (30) is provided with two substantially parallel lower supporting beams (lower links 34), which at substantially the same height are connected to the first header frame (20) capably of pivoting in a vertical plane,

- the second header frame (30) is provided with two upper supporting beams (upper links 32), wherein each of the upper supporting beam (32) is connected near the upper end of the first header frame (20) capably of pivoting in a vertical plane,

- the second header frame comprises a carrier frame for the mowing unit,

- the carrier frame is connected to the lower supporting beams (34),

- the carrier frame is pivotally connected to the upper supporting beams (32),

- the connections of the first header frame (20) with the lower supporting beams (34) and with the upper supporting beams (32) are, seen in the direction of operative travel, behind the connections of the carrier frame with the lower supporting beams and the upper supporting beams,

- the carrier frame is provided with a set of weight relief springs (40) providing a weight relief of the carrier frame carrying the mowing unit, the weight relief being substantially independent of the vertical position of the carrier frame, the said position being variable,

- the lower supporting beams (34) are pivotally connected to the carrier frame (30),

- the weight relief springs are provided between first header frame (20) and the carrier frame (30),

- the crusher device (18) is located within the space defined by the upper beams (32), the carrier frame, the lower beams (34) and the first header frame (20).

6.1.1. The appellant argued that a skilled person reading document D6 would immediately understand that the header described in this document can be mounted to the front side of a tractor provided with a three-point lifting hitch by connecting the first header frame (20) to the three-point lifting hitch of the tractor.

6.1.2. The board cannot accept this argument for the following reasons:

It is true that document D6, states that "the principle of the instant invention are not limited to use on a self-propelled machine" (column 3, lines 18 to 22). However, document D6 neither refers to a tractor provided with a front lifting hitch nor indicates how the header has to be connected to the front side of a tractor, particularly since a front lifting hitch is normally a three point connection.

The object of the invention described in document D6 is to provide a two-piece crop harvesting header and a flotation mechanism therefor, the flotation mechanism allowing flotation movements between the two header frames (20 and 30) within a limited amount (stops 36, 38) and between the entire header and the wheeled frame (12) of the harvester (see column 1, lines 41 to 44; column 2, lines 14 to 21; column 3, lines 38 to 52). In order to achieve this object, the upper links (22) connecting the first header section to the wheeled frame (12) of the harvester are in form of bell cranks onto which is connected a further set of weight relief springs (27), which are connected to anchors (29) provided on the wheeled frame (12).

Thus, the skilled person reading document D6 cannot derive from document D6 the information that the four coupling elements coupling the first header frame (20) to the wheeled frame, i.e. the two upper links (22) and the two lower links (24), can be replaced by the lower pivot arms and the top rod of a three point lifting hitch of a tractor, because the two upper links 22 of the header according to this document perform, in conjunction with the springs 27, a function which is essential for the functioning of the header and which cannot be performed by the top rod of the three-point lifting hitch of a tractor. Such a radical change in the construction of the embodiment according to document D6 can only be considered as being a result of an ex-post-facto analysis.

6.2. The subject-matter of Claim 1 is distinguished from the prior art known from document D6 at least

(a) in that the coupling element is suitable to engage the lifting hitch of a tractor at the front side of the tractor, and

(b) in that the crusher device is connected to the carrier frame.

The respondent brought forward that the coupling to the lifting hitch of the tractor and the location of the crusher device with respect to the mowing unit provide a device which can be easily handled (i.e. coupled to the tractor) and which has a fixed relationship between the mowing unit and the crusher device, so that an optimal compact position can be maintained resulting in a compact machine. The board has no reason to doubt these results.

6.3. On the subject of inventive step, the appellant essentially argued as follows:

(i) The first header frame (20) of the header according to document D6 has to be considered as a coupling element having a four-points connection with the wheeled frame of the harvester, the four-points connection being represented by the two upper links 22 and the two lower links 24. The skilled person would use the pivot arms and the top rod of the three-point lifting hitch of a tractor instead of the upper and lower links 22 and 24 and thus arrive, without exercising any inventive skill, at a machine provided with the above mentioned feature (a), i.e. at a machine having a frame suitable for connecting it to the lifting hitch of a tractor.

(ii) The conditioning rolls of the harvester disclosed in document D6 are not very heavy so that there is no need to provide for a weight relief of these conditioning rolls. If a heavier conditioner (i.e. a crusher device) is needed, the skilled person, without exercising any inventive skill, would connect it to the carrier frame, i.e. to the same frame carrying the mowing unit, so that the set of weight relief springs 40 has to be adapted to provide for a weight relief of both the mowing unit and the crusher device. Moreover, document D5 discloses an agricultural machine in which the mowing unit (118) and the crusher device (68) are both connected to the same carrier frame, and wherein a set of springs (112) provides weight relief for both the mowing unit and the crusher device. The skilled person would apply the teaching known from document D5 to the harvester described in document D6 without exercising any inventive skill and thus arrive at a machine provided with the above mentioned feature (b).

6.3.1. The board cannot accept these arguments of the appellant for the following reasons:

(i) Agricultural machines having a frame suitable for connecting them to the lifting hitch of a tractor are well known. In the present case, however, the skilled person starting from a crop harvesting header as described in document D6, would not find in document D6 any suggestion to how to connect the header to the lifting hitch of a tractor (see the above section 6.1.2).

Moreover, if the skilled person were to try to modify the crop harvesting header of document D6, he had - in order to arrive at a agricultural machine having a frame as defined by features B1, B2, B21, B22, B3, B31, B4, B41 and B42, allowing weight relief of the mowing unit as defined by features B6 and B62 and being suitable for connection with the lifting hitch of the tractor as defined by feature B - to eliminate not only the upper and lower links 22 and 24 connecting the first header frame 20 to the wheeled frame 12 of the harvester (and replacing them by the rods of the three-points lifting hitch of the tractor) but also to eliminate the set of springs 27 ensuring the flotational movement of the first header frame 20. with respect to the wheeled frame 12. In other words, the skilled person had to analyse document D6 as implicitly disclosing a harvesting header which can perform its functions without the links of the first header section towards the wheeled frame and without the springs 27. This analysis is against the teaching of document D6 which is based on the idea of combining the flotational movements of two header sections. In this respect, it has to be noted that both independent claims of document D6 (claims 1 and 10), refer not only to the second header frame 30 ("a second header section") and to the set of springs 40 ("a second resilient means") but also to the first header frame 20 ("a first header section") and to the set of springs 27 ("a first resilient means").

Therefore, the skilled person would not consider the harvesting header of document D6 as deprived of the essential features concerning "first header section" and "first resilient means".

In any case, if the skilled person were to modify the header disclosed in document D6 such that it can be connected to the lifting hitch of a tractor, he would arrive at an agricultural machine provided with two header sections and two resilient means, in which there is a combination of flotation movements between the two header sections, on the one hand, and between the first header section and the tractor, on the other hand. Such a resilient means between the first header section and the tractor, however, was intended in the patent in suit to be avoided (see column 1, lines 32 to 41).

(ii) With respect to feature (b), it has to be noted that one of the objects of the invention disclosed in document D6 is to provide a harvesting header having a first floating frame mounting the conditioner and a second floating frame mounting the mowing unit, i.e. the cutting bar. If the conditioner of the harvester known from document D6 were to be connected to the carrier frame, i.e. to the frame carrying the mowing unit, the weight of the carrier frame would significantly increase so that it would be more difficult for the mowing unit to follow changes in the contour of the ground. Thus, the skilled person would not be encouraged to mount both the mowing unit and the conditioner to the same carrier frame. In any case, even if the skilled person - turning to document D5 - were to do it, it would not arrive at a machine falling within the term of Claim 1 but to a machine provided with two header sections and two resilient means (see the above section 6.3.1.i).

(iii) Moreover, it has also to be considered that the conditioning rolls of the harvesting header according to document D6 are located within the second header frame, i.e. within the space defined by the lower links 34, the frame 30 carrying the mowing unit 16, the upper links 32 and the structural element 20 of the first header frame. Therefore, the subject-matter of Claim 1 is further distinguished from the prior art according to document D6 in that the crusher device is located "partly below" the frame (see feature C1).

6.4. In the written phase of the proceedings the appellant, referring to the independent claim 1 upon which the decision under appeal is based, considered document D0 as a possible starting point and argued that the skilled person would apply to this prior art the measures known from document D5 or D6 and thus arrive in an obvious way at the subject-matter of this claim. This argumentation was no longer pursued by the appellant in the oral proceedings during which the inventive step was discussed in the context of a further amended Claim 1.

In any case, the board is satisfied that the subject-matter of Claim 1 cannot be derived in an obvious way from the prior art known from document D0 in combination with either document D5 or document D6.

6.5. Having regard to the above comments, the subject-matter of Claim 1 is considered as involving an inventive step with respect to the prior art referred to above.

7. Dependent Claims 2 to 17 concern particular embodiments of the invention defined in Claim 1.

8. The patent can therefore be maintained on the basis of the request of the respondent.

9. During the appeal proceedings the appellant filed further documents (D7 to D9) in order to show that rear and front mounting was obvious in the technical filed of mowing machine. Since this is not objected and since these documents were no longer mentioned during the oral proceedings, the board sees no reason to deal with these documents.

ORDER

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the first instance with the order to maintain the patent on the basis of the following documents:

Claims: No. 1 to 17 as submitted in the oral proceedings;

Description: Columns 1 and 2 as submitted in the oral proceedings, columns 3 to 10 as granted;

Drawings: Figures 1 to 4 as granted.