How does the lever length increase the force?

T 1577/19 () of December 4, 2020

Facts and applications

I. The appellant (applicant) appealed against the decision of the examining division to reject application no. 15 770 794.4.

II. According to the findings of the examining division, none of the requests submitted (main request and auxiliary requests 1-3, filed with a pleading dated January 2, 2019, and auxiliary request 4 submitted during the oral proceedings) met the requirements of Article 84 EPC due to a lack of clarity of the respective claim 1.

With regard to auxiliary requests 2 and 4, the examining division also found that the subject-matter of the respective claim 1 had an inadmissible extension within the meaning of Article 123 (2) EPC and was not allowable for this additional reason.

III. The motions ultimately submitted by the appellant for a decision by the board result from the pleadings of June 10, 2020 (Motions 1 to 8), August 11, 2020 (Motions 9 to 11) and September 2, 2020 and read literally as follows:

"1. To grant the patent with the claims according to the main request of the appeal proceedings.

2. Alternatively, to grant the patent with the patent claims rejected in the contested resolution of the examination board.

3. Alternatively, to grant the patent with the documents shown in Appendix B8.

4. Alternatively, to grant the patent with the documents shown in Appendix B9.

5. Deliver a catalog of questions to which specific answers can be given.

6. Set an appointment for the oral hearing.

7. Alternatively, refer the proceedings back to a newly filled examining unit or to an opposition division.

8. In the event of the refusal of the requests made under 1. to 7., refer this case to the Enlarged Board of Appeal. "

"9. To serve a procedural order, to which a specific reply can be given, in order to bring the documents into a version necessary in the opinion of the Board of Appeal for the grant of a patent.

10. For the proper handling and answering of a procedural order, the application made under item 6 in the brief of June 10, 2020 to schedule an oral hearing is hereby withdrawn at the instruction of the notifying party.

11. In the event of a refusal to issue a procedural order, the decision will be accelerated depending on the location of the files. "

Previously, the complainant had formulated motions in her statement of grounds of appeal dated May 14, 2019 and July 10, 2019 as well as in her pleadings of January 31, 2020 and March 12, 2020, which were, however, replaced by the applications listed above and therefore cannot be reproduced.

IV. With the summons to an oral hearing scheduled for April 1, 2020, the board expressed its preliminary opinion, inter alia, with regard to the grounds for rejection on which the contested decision was based and the evidence offered with the grounds of appeal.

In this communication, the board pointed out to the appellant from a procedural point of view, with reference to Article 12 (4) RPBA 2007, that the main request and auxiliary requests 1 to 3 had been submitted for the first time in the appeal procedure without justifying reasons why they were not already in the examination procedure could have been submitted so that their admission to the procedure would be questionable (see point V.1. of the communication).

With a communication dated February 24, 2020, the board again expressed a preliminary negative opinion with regard to the admission of the new claim formulations submitted in the brief of January 31, 2019.

In a communication dated March 11, 2020, the board canceled the scheduled hearing at the request of the appellant (submission of March 10, 2020).

In a communication dated March 30, 2020, the board commented on the requests for referral back and submission to the size Board of Appeal submitted in a pleading of March 12, 2020, as well as on the objections to admissibility that had already been raised and not yet resolved.

At the request of the appellant (pleading dated June 10, 2020), the board then set a date for the oral hearing for December 4, 2020, at which the appellant did not appear despite being properly summoned in accordance with her announcement in the pleading of September 2, 2020.

V. The oral proceedings were held in the Appellant's absence, applying the provisions of Rule 115 (2) EPC and Article 15 (3) RPBA 2020.

The decision was announced at the end of the hearing. For further details of the course of the hearing, reference is made to the minutes of the hearing.

VI. Independent claim 1 of the main request (filed with brief dated January 31, 2020) reads as follows:

"

VII. Independent claim 1 of the main request discussed in the contested decision reads as follows:

"

VIII. Independent claim 1 of the 1st auxiliary request discussed in the contested decision reads as follows:

"

IX. Independent claim 1 of the second auxiliary request discussed in the contested decision reads as follows:

"

X. Independent claim 1 of the third auxiliary request discussed in the contested decision reads as follows:

"Toggle clamping device (1), especially for use in the body shop of the motor vehicle industry, with a clamping head (2), a piston-cylinder unit (3) arranged on it and alternately acted upon by compressed air, which moves in the stroke direction (XY) of the Piston (5) extending, possibly variable in length actuator (6), which drives at its end remote from the piston via a toggle joint gear (10) and via a power transmission arm (14), which via an axis of rotation (15) which is stationary in the clamping head (2), which is led out laterally from the clamping head (2), drives a clamping arm or the like pivotably, characterized in that while maintaining the clamping force on the clamping arm and maintaining the mounting dimensions for the threaded holes on the clamping head (2) the clamping head (2) each one smaller drive unit (3) with smaller piston is assigned, which drives the actuator (6) and the reduced piston force by increasing the effective lever length (L) of the power transmission arm (14) of the toggle joint mechanism (10) according to the reduced piston force of the piston (5) is restored to the original value of a larger piston-cylinder unit (3). "

XI. Independent claim 1 of the fourth auxiliary request discussed in the contested decision reads as follows:

135 ° and the respectively reduced piston force that acts on the piston rod-shaped elongated actuator (6) by increasing the effective lever length (L) of the power transmission arm (14) of the toggle joint mechanism (10) according to the reduction in the piston force of the piston (5) in question back to the original Value or practically to the original value of the holding or torque of the larger piston-cylinder unit (3) is produced, with compressed air between 25 to 60%, preferably about 38 to 40%, further preferably 25 to 26%, particularly preferably around 31 % is lowered. "

XII. Independent claim 1 according to Annex B8 reads as follows:

"

XIII. The independent claim 1 according to Annex B9 reads as follows:

e.g. a cylinder with the industry designation 63 (4)

- cylinder diameter 63 mm - through a cylinder designated with the industrial designation 50 (4)

- Cylinder diameter 50 mm - and e.g. a cylinder with the industrial designation 50 (4)

- cylinder diameter 50 mm - through a cylinder designated with the industry designation 40 (4)

- cylinder diameter 40 mm - is exchanged and

that with the resulting reduction of the cylinder diameter from e.g. 63 mm to 50 mm and from e.g. 50 mm to 40 mm, the effective lever length (L) of the power transmission arm (14) is increased in such a way that with the respectively exchanged cylinder diameter 63 to 50 mm or 50 to 40 mm the torque or holding torque achieved by the larger cylinder (4) 63 mm or 50 mm is achieved by the cylinder (4) of 50 mm or 40 mm on the axis of rotation (15) ".

Reasons for decision

1. Right to be heard

Although the appellant did not take part in the oral proceedings, the principle of the right to be heard under Article 113 (1) EPC was not violated, as it is sufficient that she had the opportunity to be heard. By failing to attend the oral hearing, the absent party waives this option (see the explanation of Article 15 (3) RPBA, cited in T 1704/06, not published in the OJ EPO, as well as the case law of the EPO boards of appeal, 9. Edition 2019, Sections III.B.2.7.3).

Otherwise, the complainant made a full statement in writing, and this submission is taken into account in this decision (Article 15 (3) RPBA 2020).

2. Applicability of RPBA 2020, including Article 13 (1) RPBA 2020

2.1 The appellant submitted a request to the Enlarged Board of Appeal to present the following legal questions relating to the applicability of the VOBK 2020 to the complaint, and asserted that this was a legal question of fundamental importance.

2.1.1 The corresponding question is formulated as follows:

"Whether the new procedural provisions, which are to be applied to proceedings before the boards of appeal at the beginning of 2020, may be applied to old cases, i.e. with retroactive effect."

2.2 The board has decided not to refer this question to the Enlarged Board of Appeal (see also point 2 of the decision of 30 March 2020).

The reason for this is that this question has already been consistently answered positively by the law, the applicable rules of procedure of the Boards of Appeal (VOBK 2020), itself and by the case law (see points 2.2.1 and 2.2.2 below).

According to the clear wording of the law, as well as its meaning and purpose, the present procedure is subject to the revised version of the procedural rules, which came into force on January 1, 2020 according to Article 24 (1) VOBK 2020.

Article 13 (1) RPBA 2020 applies in full.

A submission to the Grand Board of Appeal is therefore not required for the decision of the case within the meaning of Article 112 (1) a) EPC.

2.2.1 RPBA 2020, including Article 13 (1) RPBA 2020, is generally applicable to all complaints that are pending on the date of its entry into force (Article 25 (1) RPBA 2020). Since this can affect the submissions already contained in the file, the legislature provides for two exceptions (Article 25 (2) and (3) RPBA 2020) in order to protect the trust of those involved in any expectations that existed at the time of the earlier submissions.

2.2.2 An exception is made in relation to the revised version of paragraphs 4 to 6 of Article 12 RPBA 2020 (Article 25 (2) RPBA 2020). These provisions do not apply to grounds of appeal filed prior to the effective date of the revised version, nor to replies thereto that were submitted in due time, regardless of whether the deadline was before, on or after the effective date of the revised version expires.

Submissions that were already in the file before the revised version came into force and that were submitted after the statement of grounds of appeal or the response thereto, however, are subject to all provisions of the revised version of Article 13 (1) RPBA 2020, including the analogous application of the revised version of paragraphs 4 to 6 of Article 12 RPBA 2020.

2.2.3 Another exception is made with regard to the strict regulation of the revised version of Article 13 (2) RPBA 2020 (Article 25 (3) RPBA 2020). This provision only applies to submissions that were submitted after the statement of grounds or the reply to it if the summons to oral proceedings or a communication from the board under Rule 100 (2) EPC had not yet been served on the date on which the revised version came into force. Otherwise, Article 13 of the previously applicable version (VOBK 2007) continues to apply.

3. Subject matter of the complaint

3.1 The appellant has also submitted a request to the Enlarged Board of Appeal for a question of law relating to the scope of the examination by a board.

This question is as follows:

"Whether it is legal, in the event that the criteria" novelty "and" inventive step "have not yet been finally examined at first instance, and if there is an objection to" clarity "under Article 84 EPC it is justified, an application is also justified to be referred back if both an incorrect term was chosen for the category and the scope of protection of a patent to be granted was unreasonably restricted and the rules of interpretation under Article 69 EPC and the Protocol were not observed. "

3.2 The Chamber sees no basis and no need for such a submission in this regard either (see also point 2 of the decision of March 30, 2020).

The reason for this is that this question is also clearly answered by the law, namely Article 111 (1), sentence 2, 114 (1) and 97 (2) EPC.

In proceedings relating to an appeal against a decision of an examining division rejecting a European patent application, the board has the power to examine whether the application and the invention to which it relates meet the requirements of the EPC (Article 111 (1), sentence 2, 114 (1) and 97 (2) EPC).

All patentability requirements - each one individually - must be met in order to be able to file an application.

This also applies, among other things, to requirements that the Examining Division did not take into account in the examination procedure or deemed to have been met.

A referral to the Enlarged Board of Appeal is therefore not required for the decision of the case within the meaning of Article 112 (1) a) EPC.

In this regard, the board notes that this question relates to the specific circumstances of the case and the application of the law to the specific individual case, and therefore cannot be a question of law of fundamental importance within the meaning of Article 112 (1) EPC.

4. Submission of the "case"

4.1 The complainant's application No. 8 literally reads as follows:

"8. If the requests made under 1. to 7. are refused, refer this case to the Enlarged Board of Appeal."

4.2 The EPC does not provide for such a template.

The Enlarged Board of Appeal does not act as a review or "super-revision body" in factual issues and accordingly does not represent a higher-level appeal body for "complaints" against the boards of appeal (see the case law of the boards of appeal, op. .

The Enlarged Board of Appeal is responsible for taking decisions on legal questions referred to it by a Board of Appeal if it considers a decision by the Enlarged Board of Appeal to be necessary (Article 112 (1) a) EPC), and for issuing opinions on legal questions that be submitted to it by the President of the EPO if two boards of appeal have taken divergent decisions on this issue (Art. 112 (1) b) EPC).

5. Main request

5.1 The main request ultimately submitted by the complainant (request 1 in accordance with the pleadings of June 10, 2020, August 11, 2020 and September 2, 2020) reads literally as follows:

"1. To grant the patent with the claims according to the main request of the appeal proceedings."

5.2 The appellant has initially replaced the main request submitted with the statement of grounds of May 14, 2019 with a new main request (pleading dated January 31, 2020).

5.3 As already stated above under point 2.2.1, the present proceedings are subject to the revised version of the rules of procedure according to the clear wording of the law as well as its meaning and purpose. Article 13 (1) RPBA 2020 applies in full.

Pursuant to Article 13 (1) RPBA 2020, the admission of changes to a party's complaint is at the discretion of the board after the submission of its statement of grounds or response. A party to the proceedings must state the reasons why they are not submitting the change until this stage of the appeal process.

5.4 In the present case, the complainant did not assert any such reasons for the belated submission of this main request in the brief of January 31, 2020 (see in particular point 6 of this brief).

5.5 In these circumstances, and taking into account all relevant aspects relating to these questions, the Board sees no reason to admit the main request to the appeal proceedings.

6. Requests on which the contested decision was based

6.1 The complainant introduced these applications for the first time in the complaint procedure with a brief dated June 10, 2020.

Motion 2 according to the pleadings of June 10, 2020, August 11, 2020 and September 2, 2020 reads literally as follows:

"2. Alternatively, to grant the patent with the claims rejected in the contested resolution of the examining section."

These are the main request and auxiliary requests 1-4, which were rejected as not patentable according to the contested decision (see point VII above).

6.2 As already discussed, Article 13 (1) RPBA 2020 provides that changes to a party's complaint after submitting its statement of grounds require justifying reasons on the part of the party concerned.

The board notes that the appellant had not submitted these requests with the statement of grounds, but other requests (see the pleadings of May 14, 2019 and July 10, 2019) and is now submitting new requests with a submission of June 10, 2020.

The complainant has not put forward any justifying reasons for this.

It failed to provide any form of substantiation for these applications (see brief of June 10, 2020).

In this context, the board notes that in decisions of the Enlarged Board of Appeal G 9/92 and G 4/93 (OJ EPO 1994, 875) it was decided that the appeal determines the scope of the appeal proceedings.

Procedural requests or procedural declarations by a party during the administrative procedure preceding the appeal procedure (as in the present case, the requests discussed in the contested decision) therefore do not apply to a subsequent appeal procedure if these are not specified and substantiated at the beginning of the appeal procedure in the notice of appeal and the statement of grounds were repeated.

Incidentally, in terms of procedural law, the complainant was responsible for withdrawing the main request from the statement of grounds of May 14, 2019 by replacing it with another main request in the brief of January 31, 2020.

Admittedly, it is up to a party involved in the appeal, within the framework of the disposition maxim, whether or not to file an appeal and in this way make his request before the boards of appeal. He also determines the scope of his desire himself. This means, however, that he can in principle change a selected scope (i.e. a request) in accordance with the rules of procedure, but he is also bound, regardless of delay regulations, to the extent that he has a specific scope of his appeal request (here by the one with the beginning The main request submitted during the appeal procedure and the auxiliary requests 1 to 3 submitted at the same time, with the main request again being replaced by an amended main request in the brief of January 31, 2020) not by the reintroduction of requests that were not pursued before (here the main request and auxiliary requests 1 to 4, all of which formed the basis of the contested decision) can factually reverse.

The board thus decides not to admit both the main request and the auxiliary requests on which the contested decision was based in the appeal proceedings (Article 13 (1) RPBA 2020).

7. Auxiliary requests B8 and B9

7.1 The complainant also introduced these applications into the complaint procedure for the first time in a brief dated June 10, 2020 as applications 3 and 4.

According to the pleadings of June 10, 2020, August 11, 2020 and September 2, 2020, these requests are literally as follows:

"3. Alternatively, to grant the patent with the documents shown in Appendix B8.

4. Alternatively, to grant the patent with the documents shown in Appendix B9. "

7.2 The Chamber notes that with regard to these requests, too, no substantiation and therefore no justifying reasons were put forward on the part of the appellant (see brief of June 10, 2020).

The Chamber thus decides not to admit these requests either (Article 13 (1) RPBA 2020).

8. Intermediate result

The board notes that, due to the appellant's particular conduct of the proceedings, there is no admissible request that could serve as a basis for a possible discussion of the requirements for patentability.

9. Offers of Evidence

Insofar as the complainant has offered to submit confirmations from automobile companies and / or the relevant association for the motor vehicle industry, which could confirm the specialist knowledge, or has requested such confirmations, this is also irrelevant for the decision in the current proceedings.

The same applies to the offered submission of test certificates for the competitive articles mentioned in the contested decision, as well as to the participation of the board in corresponding measurements at the appellant.

The board also sees no basis and no need for evidence to be taken or for a specific request to be made to the appellant to present further documents in the form of third-party confirmations or examination certificates.

These offers of evidence are not relevant to the decision as no admissible version of the claims was submitted (see point 8 above).

Rather, the reasoning for the present decision set out below is based on the admissibility criteria provided for in the VOBK 2020 and on the complainant's particular conduct of the procedure, without the specialist knowledge or the assessment of the assessments of third parties being relevant.

10. Remittal

10.1 The complainant requests (verbatim reproduction from the pleading of June 10, 2020):

"7. Alternatively, refer the proceedings back to a newly filled examining unit or to an opposition division."

10.2 The Board notes the following with regard to the request for referral back to the Examining Division.

A board only refers the matter back to the body that issued the contested decision for further decision if there are particular reasons for it. There are usually special reasons if the procedure before this body shows significant deficiencies (Article 11 RPBA 2020).

In the present case, however, remittal is not necessary because the patent proprietor has failed to formulate a permissible set of claims on the basis of which the lower court could resume the examination at all.

According to the established case law of the boards of appeal, the parties do not have a fundamental right to examine facts in two instances, since Article 111 (1), second sentence, EPC leaves it at the discretion of the board, when deciding on the appeal, either within the scope of the competence of the first instance body to take action or refer the matter back to that body.

10.3 Regarding the request for remittal to an opposition division, the board notes that this is not possible under the EPC anyway, since the opposition division did not issue the decision under appeal and could not be responsible for the examination procedure at all.

11. Catalog of questions - procedural order

The motions ultimately submitted by the appellant for a decision by the board also include (from the pleading of June 10, 2020, verbatim rendering):

"5. Deliver a catalog of questions to which specific answers can be given."

as

"9. To serve a procedural order to which a specific reply can be given in order to bring the documents into a version that the Board of Appeal believes is necessary for the grant of a patent."

11.1 It is not the task of a Board of Appeal to create "catalogs of questions" or to actively support the Appellant with "procedural orders" in arriving at an allowable version of the claim for an application.

The appeal procedure is an independent judicial procedure that is completely separate from the procedure before the administrative bodies (here the examining division).

Its task is to pass a judicial judgment on the correctness of an earlier decision of the administrative body that issued the contested decision, which must be strictly separated.

Pursuant to Article 12 (2) RPBA 2020, with regard to the primary aim of the appeal proceedings to review the contested decision in court, the applicant's submissions would have to be directed primarily at the requests, facts, objections, arguments and evidence submitted by the contested decision Decision were based.

In addition, according to established case law, the examination of a decision of the examining division can only be carried out on the basis of the reasons already asserted before it, whereby the preliminary application of a complainant determines the procedure (ne ultra petita) (see decisions G 9 / 92 and G 4/93, supra).

This defines the scope of Article 114 (1) EPC and a clear demarcation between the power to initiate the procedure and determine its subject matter and the power to explain the relevant facts.

12. Closing remarks

Due to the appellant's independent, special procedure, the Board of Appeal was at no point in the appeal proceedings in a position to begin a substantive examination.

Therefore, the complainant's request for appeal remains unsuccessful overall, which is why the appeal is rejected. This also applies to the submission to the Enlarged Board of Appeal requested as an integral part of the appeal request, which is also assigned. In this respect, the decision announced at the end of the oral hearing and related to the rejection of the complaint is supplemented.

Decision formula

For these reasons it is decided:

1. The request for reference to the Enlarged Board of Appeal is refused.

2. The appeal is rejected.