T 0229/99 (Television receiver/MATSUSHITA) of 5.11.2002

Summary of Facts and Submissions

I. This is an appeal against the decision of the opposition division to revoke European patent No. 0 468 356 on the ground that the subject-matter of claim 1 of a main request and a first auxiliary request lacked an inventive step. Second and third auxiliary requests were rejected as inadmissible because they were filed at a late stage in the course of oral proceedings. In its decision the opposition division referred inter alia to the following documents:

D1: DE-A-31 05 301

D6: GB-A-2 070 828

D1 and D6 are members of the same document family, the decision primarily referring to D1 but discussing D6, which is in the language of the proceedings, in connection with the drawings.

II. An appeal was filed in which the patentee (appellant) requested that the opposition division's decision be set aside and the patent be maintained as granted. Oral proceedings were also requested. In the subsequently filed statement of grounds of appeal the appellant filed new requests: maintenance in amended form on the basis of claims of a main request or alternatively first to third auxiliary requests filed with the statement of grounds. The opponent (respondent) requested that the appeal be dismissed and made an auxiliary request for oral proceedings. In the course of the appeal procedure the respondent referred to a document originally discussed in the pre-grant proceedings:-

D7: IEEE TRANSACTIONS ON CONSUMER ELECTRONICS, vol. 34, No. 3, August 1988, pages 807 to 812 Saitoh at el., "A new TV receiver".

III. Following a communication from the Board, accompanying an invitation to oral proceedings, the appellant replaced the existing requests by a new main request and first to ninth auxiliary requests.

IV. Oral proceedings were held on 5 November 2002. At the commencement of these proceedings the appellant revised the order of the existing requests but maintained them otherwise. He requested that the decision under appeal be set aside and that the patent be maintained on the basis of the main request received by letter dated 1. October 2002, or on the basis of auxiliary requests 1 to 9 corresponding respectively to auxiliary requests 1 to 3, 5 to 8 and 4 received by letter dated 1 October 2002.

V. The respondent requested that the appeal be dismissed. It was argued that the claims of the various requests either were not based on a direct and unambiguous disclosure in the originally filed application or lacked an inventive step having regard inter alia to the disclosure of D1/D6 and D7.

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

"A television receiver comprising

a mode setting means (1) for selectively setting either a factory check mode of operation or a normal mode of operation of an adjustment section (1,5) for adjusting variable parameters of said receiving circuit such as sound volume or brightness of the television receiver having a first predetermined speed of adjustment variation, the mode setting means (1) being operatively connected to control means (2) for controlling said mode setting means (1) in response to the instruction signal of an instruction signal input means (3),

characterized in that

the adjustment section (1,5) is adapted to have the first speed of adjustment variation in the factory check mode and to have a second predetermined speed of adjustment variation lower than said first speed of adjustment variation in the normal mode of operation, and in that

the instruction signal input means (3) comprises a remote control device and a key input device."

VII. Claim 1 of the first auxiliary request adds to claim 1 of the main request the following feature:

"the television receiver comprises means for changing said normal mode to an ageing mode and means for enabling display means (4) to indicate information representing said ageing mode when said normal mode is changed to said ageing mode."

VIII. Claim 1 of the second auxiliary request adds to claim 1 of the main request the following features:

"the television receiver comprises means for changing said normal mode to an ageing mode in which a cathode ray tube (6) and other sections of the television receiver are automatically held during loss times between sequential adjustment and check steps (61, 62, 63, 64),

and means for enabling display means (4) to indicate information representing said ageing mode when said normal mode is changed to said ageing mode."

IX. Claim 1 of the third auxiliary request reads as follows:

"A television receiver comprising

a memory means (1) for storing mode data related to a plurality of operation modes,

a mode setting means (1) for selectively setting one of the plurality of operation modes,

the mode setting means (1) being operatively connected to control means (2) for controlling said mode setting means (1) in response to an instruction signal of an instruction signal input means (3),

characterised

in that the plurality of operation modes includes a normal mode of operation of an adjustment section (1,5), a factory check mode of operation of the adjustment section (1,5) and an ageing mode of operation,

by a shipment setting detection means (1) for detecting whether or not a shipment setting signal is inputted,

by a shipment change means (1) for automatically changing the operation mode to the normal mode when the shipment setting detection means detects that a shipment setting signal is inputted,

by an ageing mode setting means (1) for automatically changing the operation mode to the ageing mode and holding the ageing mode during loss times between adjustment and check steps,

wherein the adjustment section (1,5) is adapted to adjust variable parameters of a receiving circuit such as sound volume or brightness of the television receiver having a first predetermined speed of adjustment variation in the factory check mode and a second predetermined speed of adjustment variation lower than said first speed of adjustment variation in the normal mode of operation,

wherein the mode setting means (1) is adapted to set the operation mode in response to the mode data in the memory means, and

wherein the instruction signal input means (3) comprises a remote control device and a key input device."

X. Claim 1 of the fourth auxiliary request reads as follows:

"A television receiver comprising:

a receiving circuit (11) having adjustment sections for adjusting variable parameters of said receiving circuit such as sound volume or brightness of the television receiver

control means (13) for controlling the adjustment sections of the receiving circuit (11) to adjust and check the adjustment sections of the receiving circuit (11);

memory means (14,15) for storing data determining control modes of the control means comprising a nonvolatile memory (15) and a RAM (14); and

input means (12) for inputting a signal for designating the control-mode determining data in the memory means to control the adjustment sections of the receiving circuit;

characterized in that

the nonvolatile memory (15) is adapted to store both factory check mode setting data and normal mode setting data for setting a factory check mode in which speeds of adjustment variation of the adjustment sections of the television receiver (11) are set at predetermined speeds higher than corresponding speeds in said normal mode and in that

the television receiver further comprises means (13) for selectively transferring the factory check mode setting data and the normal mode setting data from the nonvolatile memory (15) to the RAM (14), further

with display means (16) for indicating information representing a designated control mode and also information representing results of adjustments by the control mode, and

means (13) for enabling the display means (16) to indicate information representing the selected mode."

XI. Claim 1 of the fifth auxiliary request adds to claim 1 of the fourth auxiliary request the following features:

"the television receiver comprises means (13) for changing said normal mode to an ageing mode and

means (13) for enabling said display means (16) to indicate information representing said ageing mode when said normal mode is changed to said ageing mode."

XII. Claim 1 of the sixth auxiliary request adds to claim 1 of the fifth auxiliary request that in the ageing mode "a cathode-ray tube (17) and other sections of the television receiver are automatically held during loss times between sequential adjustment and check steps (61, 62, 63, 64)".

XIII. Claim 1 of the seventh auxiliary request adds to claim 1 of the fourth auxiliary request that "the television receiver comprises means for changing the television receiver to an ageing mode in which all the sections of the television receiver are activated".

XIV. Claim 1 of the eighth auxiliary request adds to claim 1 of the fourth auxiliary request the following features:

"a power supply switch for resetting the control means (13) when the power supply switch is switched to an on position"; and

"the television receiver comprises a main power supply relay switch which is changed to an on position for activating all the sections of the television receiver when the control-mode determining data represents an ageing mode of operation, and

means (13) for enabling said display means (16) to indicate information representing said ageing mode when the main power supply relay switch is changed to an on position".

The first of the above-mentioned features is in the claim preamble, the remaining two features in the characterising part.

XV. Claim 1 of the ninth auxiliary request adds to claim 1 of the fifth auxiliary request the following features:

"a shipment setting detection means (13) is provided for detecting whether or not a shipment setting signal is inputted; and in that

a shipment change means (13) is provided for changing the operation of the adjustment sections from the high-speed-of-adjustment-variation-mode to said normal mode when the shipment setting detection means (13) detects that a shipment setting signal is inputted."

XVI. The appellant argued that D1/D6 did not disclose the provision of first and second speeds of "adjustment variation" which permitted a gradual change in the parameters of a television receiver such as volume or brightness. It would be clear to the skilled person that the adjustment of such parameters was not compatible with a jump between discrete values. Indeed, the concept of "adjustment" only had meaning in the case of a gradual change. Also, only a discrete speed could be "predetermined", as in the normal mode of operation, since the concept of speed implied a change with time. D1/D6 had user and maker (i.e. factory) modes set by a switch Sm in which operational switches S0 to S15 had differing functions, as could be seen from Figure 6 of D6; thus, in the user mode S10 caused the brightness to increase but in the maker or factory mode caused a "standard brightness" to increase, meaning the pre-set value of brightness when the receiver is first switched on and to which it is re-set when S14, "standard state", is activated. Page 5, lines 123 to 128 of D6 showed that the standard conditions were stored. From page 1, lines 88 to 91 of D6 it could be seen that only discrete values were possible, activation of the switch S0 resulting in the sound being increased by one step rather than permitting a gradual increase. The control loop shown in Figure 4 made clear that when the switch was activated only a single step was incremented, further activation being necessary for further steps. The receiver also included a switch St which was a test switch, see page 2, lines 97 to 104 of D6. In a "normal" mode the control was in the usual discrete steps but in "quick" mode the controls were set to their limits at each activation of a switch. The operative modes were discussed in connection with Figure 5 of D6 at page 3, line 127 to page 4, line 29. Page 5, lines 5 to 7 showed that in the "quick" mode a single press gave the maximum or minimum value.

In the patent in suit on the other hand the skilled tester could manipulate the controls to achieve desired values very rapidly, using the fast mode. Since D1/D6 only gave extremes it did not permit adjustments to be made. To enable D1/D6 to be used in the same manner as the invention would require major changes in both the hard and the software, for example the loop which specified that one switch activation equalled one increment of change requiring to be removed in Figure 4. The skilled person would not arrive at such changes without the exercise of invention.

XVII. The respondent agreed with the appellant's analysis of D1/D6 and also agreed that the primary point in connection with claim 1 of the main request was the issue of what was to be understood by "predetermined speed of adjustment". Since however the patent nowhere defined what was to be understood by this term it was not permissible for the appellant to read it in a highly specific manner.

XVIII. The parties' arguments on the auxiliary requests are discussed in the Reasons for the Decision.

XIX. At the end of the oral proceedings the Chairman closed the debate and announced the Board's decision.

Reasons for the Decision

1. Admissibility of the appeal.

The appeal satisfies the requirements mentioned in Rule 65(1) EPC and is consequently admissible.

2. Main request

2.1. In the course of the oral proceedings the respondent argued that claim 1 of the main request was not novel. It was common ground between the parties that D1/D6 disclosed a television receiver comprising mode setting means for selectively setting either a "maker's (manufacturer's) adjusting mode" or a "user's adjusting mode", see page 2, lines 88 and 89 of D6, corresponding to the factory check mode and normal mode of operation of the receiver as specified in the preamble of claim 1. D1/D6 also discloses a remote control device and a key input device, see page 2, lines 61 to 65 and 80. to 82 of D6. The remaining feature of claim 1 provides a first predetermined speed of adjustment variation in the factory mode and a second predetermined speed of adjustment variation, lower than said first speed, in the normal mode. At the oral proceedings the debate centred on whether D1/D6 disclosed this feature.

2.2. In accordance with D1/D6 a switch pad is provided which is connected by way of a transmitter 50 and a serial bus to a digital receiver 100 within the television receiver, see Figures 1 and 2. The switch pad includes two switches St and Sm which serve to simplify adjustment in the factory. Switch Sm permits the switch pad to be used in one of two modes, the first mode being the user mode for normal operation and the second mode the maker mode for factory adjustment. In this latter mode the switch pad, which is largely made up of switches S0 to S15 arranged in pairs, serves different functions, primarily the entry of predetermined values of receiver parameters to set the initial state of the receiver and to which it can be returned by the operation of a "standard state" switch S14. In both modes each press of the switch changes the parameter controlled by one increment, see page 4, lines 99 to 129. In addition, a test switch St is provided, which enables the controls to be set, apparently instantaneously, to maximum and minimum values for test purposes, see D6 at page 4, lines 15 to 29 and page 5, lines 5 to 7. The Board notes that in D6 the test mode is referred to as a "quick mode".

2.3. In D1/D6 each switch press thus causes, in the normal and factory modes, an incremental change, either up or down one step or, in the test mode, to the maximum or minimum. The Board accepts that there is no explicit disclosure of two predetermined speeds of adjustment variation in the normal and factory modes, so that this feature distinguishes the subject-matter of claim 1 from the disclosure of D1/D6. The claim is accordingly novel.

2.4. Turning now to inventive step, the object of the invention is given at column 1, lines 30 to 34 of the patent in suit as being to provide a television receiver which can be produced more economically than previous known designs. Although not explicitly stated it appears from the description that the economy is achieved by the provision of means (i.e. different adjustment speeds) which enable a faster set-up rather than by a more economical construction. The Board accordingly sees the objective problem to be solved with respect to the closest prior art as being to provide a more efficient factory set-up.

2.5. D1/D6 provides a solution to this problem, see page 1, lines 12 to 41 of D6. It is said that the maker usually adjusts various parameters by means of variable resistors set to a standard position. In the case of a receiver using integrated circuits these variable resistors must be external, reducing the effects and merits of an integrated circuit construction; they also have the disadvantage of comprising moving components so that their reliability is low and their cost is high. Additional disadvantages are relatively large size and difficulty of adjustment by remote control operation. Finally, the passage states that when a television receiver is adjusted in the factory, this adjustment is made at the rear side of the receiver, which is difficult for the technician.

2.6. The receiver of D1/D6 overcomes the problem of variable resistors by making use of digital storage in order to retain the various parameters, see non-volatile RAM 56 in Figure 2. From Figure 7 of D6 it can be seen that, for example, sound volume is stored as 5 bits and brightness as 4 bits; this means that the volume has 32 discrete values and brightness 16 discrete values. Adjustment is simplified by locating the switches S0 to S15 at the front of the receiver, see D6 at column 5, lines 113 to 122.

2.7. The patent in suit discloses few details of how a faster set-up is achieved; although a non-volatile memory 15 is shown in Figure 2 it is not explained in what form the data is stored, nor how many bits are stored per control parameter. Reference is made in the description to a "quick mode of operation" and "higher control speeds", but there is no mention of predetermined speeds; however, in a digital receiver, which requires a clock and stores discrete values, all speeds will be predetermined speeds. The Board accordingly sees no limitative significance in the references in claim 1 to a predetermined speed. The question to be answered thus devolves to whether the skilled person, given the teaching of D1/D6 and seeking a more efficient factory set-up, would find it obvious to check control parameters at a speed intermediate between the normal speed and the apparently instantaneous test mode. This Board considers that once the question is posed the answer is obvious, given that a second mode - which D1/D6 indeed refers to as a "quick" mode - is already present. Moreover, the manner in which this can be done follows from the use of data storage. By ignoring the least significant bit each key press doubles the size of a step and therefore doubles the speed. In the Board's view, were the skilled person to be faced with the need to provide faster access to parameters in the factory mode, this is exactly what would be done.

2.8. The Board accordingly concludes that the skilled person, starting out from the disclosure of D1/D6 and faced with the problem of providing a more efficient factory set-up, would find it obvious to increase the speed of adjustment variation in the factory adjustment mode. The subject-matter of claim 1 of the main request accordingly lacks an inventive step (Article 56 EPC).

3. First to third auxiliary requests

3.1. These requests are taken together since they all include the feature of an "ageing mode". In the oral proceedings the question of what was to be understood by this mode was discussed in some detail. Figure 4 of the patent shows at 65 an ageing step which the description refers to at column 5, lines 26 and 27 as a "positive ageing step". In Figure 5 this step is removed and in between factory adjustment and check modes an "ageing mode" is in operation.

3.2. The Board notes that the expression "ageing mode" is not explained in the patent in suit. The fact that a distinction is made between a "positive ageing step" and an "ageing mode", the latter being what takes place when no other modes are invoked, could be taken to imply that the receiver is merely allowed to operate without interference, i.e. the normal "burn-in" which is well known in the art. Nevertheless, the references in all three requests to changing to an "ageing mode" and in two of the requests to displaying information representing the mode appear to mean that something more is meant, even if the patent does not make clear what.

3.3. Be that as it may, the ageing mode is only disclosed in the originally filed application in connection with the second embodiment, see Figure 2. In the originally filed application, and particularly in the various independent claims, the ageing mode is invariably coupled with the use of the non-volatile memory 15 for storing and switching modes, and storing and changing information and reference data corresponding to such modes; there is no disclosure of the one without the other. In the first embodiment, see Figure 1, the mode change is carried out by means of a manually operated factory check mode switch 2.

3.4. The appreciation that the ageing mode could also be applied to the first embodiment, which lacks such memory data, is not directly and unambiguously derivable from the originally filed application and the Board accordingly concludes that the subject-matter of claim 1 of the first and second auxiliary requests gives rise to objection of added subject-matter under Article 123(2) EPC. Similarly,the subject-matter of claim 1 of the third auxiliary request implies that the memory need not be non-volatile and thus adds subject-matter. These requests are accordingly not allowable.

4. Fourth auxiliary request

4.1. Claim 1 of this request corresponds to claim 3 as granted, an independent claim directed to the second embodiment. It was common ground at the oral proceedings that the preamble of claim 1 is known from D1/D6.

4.2. At the oral proceedings the question arose of what was to be understood by the reference in the first characterising feature to the non-volatile memory being adapted "to store both factory check mode setting data and normal mode setting data". The appellant argued that this was not analogous to the non-volatile memory 56. referred to at page 2, lines 72 to 74 of D6, which stored data representing "control objects". Rather, the reference to setting data indicated that what was meant was not storage of the information and reference data referred to at column 3, lines 35 to 39 of the patent but of the 1-bit data representing either a factory mode or a normal mode as discussed at column 3, lines 32 to 34 of the patent.

4.3. In D1/D6 the data indicating in which mode the device starts is stored in the switch Sm; whether the data is stored mechanically by means of a switch or electronically by means of a non-volatile memory is a matter of ordinary workshop practice. In the Board's view, no inventive step is involved in choosing the latter.

4.4. As regards the reference to speed of adjustment in the first characterising feature, for the reasons given at point 2.8 above the Board considers that no inventive step is involved in adjustment at differing speeds. The claim moreover states that the data indicating the mode is transferred from the non-volatile memory to the RAM; Figure 2 of D1/D6 shows that the state of switch Sm is passed to an input port 63 and from there to a data bus 54. to which random access memory 53 is also attached. From Figure 5 it can be seen that the data indicating the switch position is used in decision branches 311 and 312, showing that this data is stored in RAM.

4.5. The final features of the claim, referring to the television receiver display indicating information representing the selected control mode and the results of adjustments, do not appear to differ from the use of an on-screen display, which was common general knowledge in the art at the claimed priority date. The respondent moreover drew attention to the disclosure of D7, which at page 808, Figures 2 and 3, shows a "NVM", ie a non-volatile memory, and at page 811, right-hand column, lines 2 to 7 states that the non-volatile memory stores, inter alia, mode selection data. From page 812, left-hand column, first paragraph, and Figure 9 it can be seen that D7 discloses a receiver which displays the control mode, namely "SERVICE" in the example given, and information representing results of adjustments by the control mode, namely "item data" and "item number". The Board accordingly considers that the skilled person, faced with the additional problem of providing an on-screen display for use in factory and servicing modes would find the solution in D7 and would without the exercise of inventive skill apply this solution to the receiver known from D1/D6.

4.6. The subject-matter of claim 1 of the fourth auxiliary request accordingly lacks an inventive step.

5. Fifth to eighth auxiliary requests

5.1. Claim 1 of each of these requests is based on claim 1 of the fourth auxiliary request and adds the feature of the ageing mode. However, as noted at point 3.2 above, the patent contains no details of what is meant by the ageing mode other than that it occurs in an otherwise unexplained "positive ageing step" 65, see Figure 4 and column 5, lines 26 and 27, or alternatively in the time between checking and adjustment steps in the factory mode, see Figure 5.

5.2. Although the appellant drew attention to the reference at column 4, lines 5 to 8 to a "main power supply relay switch" which caused all sections of the television receiver to be activated, he was unable to convince the Board that this implied anything more than a television receiver being switched from standby mode, in which only certain sections of the receiver receive power, to normal operation, in which all sections of the receiver receive power. Thus, without considering these claims in detail, it is difficult to see where any inventive step might lie, given that it is common general knowledge in the electronics art to provide for standby operation and well-known in the art to provide a so-called "burn-in" time.

5.3. Claim 1 of the fifth auxiliary request adds to claim 1 of the fourth auxiliary request the ageing mode and means for enabling the display means to indicate information representing the ageing mode. The Board would observe that although this subject-matter is present in claim 4 as granted it is not clearly derivable from the originally filed description; be that as it may, given that D7 suggests displaying the mode in use on the screen it would be self-evident to the skilled person that if the burn-in time were to be considered a mode this fact could be displayed on the screen. Since the subject-matter of claim 1 of the fourth auxiliary request lacks an inventive step, the same objection applies to claim 1 of the fifth auxiliary request.

5.4. The sixth auxiliary request adds to the fifth auxiliary request a further detail from the description, namely that in the ageing mode the cathode ray tube and other sections of the television receiver "are automatically held during loss times between sequential adjustment and check steps", see the description at column 5, lines 21 to 24. This is shown in Figure 5; it appears to mean that the burn-in time is included in between the various adjustment and check steps that the receiver passes through. In the Board's view it is self-evident that when the receiver is not being adjusted the operation time counts as part of the burn-in time, so that the subject-matter of claim 1 of this request lacks an inventive step.

5.5. Claim 1 of the seventh auxiliary request merely specifies the ageing mode and that all sections of the television receiver are activated in it; reference is directed to point 5.2 above. It is open to the same objection of lack of inventive step and for the same reasons as claim 1 of the fifth and sixth auxiliary requests.

5.6. Claim 1 of the eighth auxiliary request specifies the presence of a power supply switch for resetting the control means within the television receiver and a main power supply relay switch which is changed to an on position for activating all the sections of a television receiver in an ageing mode of operation. These features are indistinguishable from the normal power supply switch on a television receiver, which will inter alia reset the control means when power is supplied, and the normal relay switch which causes the television receiver to change from stand-by operation to normal operation as discussed at point 5.2 above. Claim 1 of the eighth auxiliary request is accordingly open to the same objection of lack of inventive step as claim 1 of the fifth auxiliary request.

6. Ninth auxiliary request

6.1. Claim 1 of this request adds to claim 1 of the fifth auxiliary request the shipment mode, in particular "shipment setting detection means" for detecting whether or not a shipment setting signal is inputted and "shipment change means" for changing the operation of the adjustment sections from the high speed mode to the normal mode.

6.2. The originally filed description does not explain what is to be understood by "shipment setting", but the Board infers from Figure 5 that it involves resetting the receiver to the normal mode prior to delivery; implicit in this is that the various parameters set in the adjustment step are stored in the non-volatile memory. The Board considers that such a step is self-evidently necessary in any television receiver being shipped to a customer and notes that D1/D6 includes this step: at page 1, lines 17 to 22 of D6 it is stated that upon shipping a television receiver the maker or manufacturer usually adjusts various parameters to standard positions and goes on to discuss how this can be done electronically. Although D1/D6 does not explicitly mention a shipment step, the skilled person is taught that the data deriving from the various adjustments is stored in the non-volatile memory; implicit is that the receiver is shipped in normal mode, which D6 refers to "user's adjusting mode".

6.3. The Board accordingly concludes that the subject-matter of claim 1 of the ninth auxiliary request lacks an inventive step.

7. There being no allowable requests, it follows that the appeal must be dismissed.

ORDER

For these reasons it is decided that:

The appeal is dismissed.