Key points
- The Board finds that claim 1 as granted does not meet Article 83 EPC.
- "In the Board's view the skilled person would not be able to implement feature (i) ("an air flow whose temperature has been regulated by an evaporator (4) and a heater (5)"), for the following reasons."
- The feature "requires that the evaporator and the heater regulate the temperature of the air flow. This means that both the heater and the evaporator are operated and controlled in such a way that a desired temperature variation occurs"
- The patent teaches in para. [0031] to use an air-mix damper to regulate the temperature. This unit is, however, not specified in the claim.
- "the skilled person would face the task of putting into effect an HVAC (according to claim 1) including feature (i) implying that the air flow temperature is regulated by the evaporator and the heater, not necessarily including an air-mix damper."
- "The skilled person, however, would not find in EP-B any indication, guidance or instruction as to how feature (i) is to be implemented when the air flow temperature is regulated only by operating and controlling an evaporator and a heater. The specific embodiment disclosed in EP-B and discussed above does not give the skilled person any suggestions or hints leading to a solution of this technical problem, the air-flow temperature regulation by means of an air-mix damper being based on entirely different principles as already noted hereinbefore."
- I can't judge the technical merits of the Board's reasoning. That's not the point of this post.
- Claim 1 of auxiliary requests 4, 5, 6 and 7 differs from claim 1 of the main request, [by specifying] "simultaneously so as to guide the temperature-regulated air to the side demister channels (31), and an air mix damper (6) arranged between the evaporator (4) and the heater (5)"."
- " The Board did not admit auxiliary requests 4 to 7 into the appeal proceedings, since these requests were filed at a late stage in the proceedings, i.e. after the communication of the Board pursuant to Article 15(1) RPBA 2020 (Rules of Procedure of the Boards of Appeal), and such late filed requests can only be admitted under exceptional circumstances (Article 13(2) RPBA 2020)."
- " the Respondent [proprietor] could and should have submitted auxiliary requests 4 to 7 at the latest with its reply to the statement of grounds of appeal. No exceptional circumstances can be identified and invoked in the present case".
- The patent is revoked.
- This seems a strict but not unusual application of Article 13(2) RPBA. Probably, admitting the request would have necessitated a whole round of debate on novelty and inventive step late in appeal.
- Incidentally, claim 1 reads - note the very long preamble: "A vehicle heating ventilation and air conditioning unit (1) that is configured so as to selectively blow out an air flow whose temperature has been regulated by an evaporator (4) and a heater (5) mounted in an air channel from a DEF blowing channel (17), a face blowing channel (16), and a foot blowing channel (18), which are provided downstream of the evaporator (4) and the heater (5), into a cabin by opening and closing a DEF damper (8), a face damper (7), and a foot damper (9), the vehicle heating ventilation and air conditioning unit comprising: side demister channels (31) ... and plate-like baffle ribs ".
- The functional feature was hence located in the claim preamble and not a functionality of the claimed air conditioning unit itself but of the "surrounding" heater and evaporator (as I understand it).
EPO
The link to the decision is provided after the jump, as well as (an extract of) the decision text.
source http://justpatentlaw.blogspot.com/2023/12/t-168421-to-encourage-others.html
