Monday, 21 December 2009

T 546/07 – You Have To See Things In Context

The opposed patent concerns ski bindings for alpine touring, comprising a ski boot support 10 having a front support part 20 on which a front jaw 50 is mounted, and a rear support part 40 on which a heel jaw 80 is mounted, both jaws being shaped to hold a ski boot. The front support part 20 is articulated so that it can pivot about a first axis 1 with respect to a base part 3 fixed to the ski. The rear support part 40 is articulated pivotal about a second pivot axis substantially parallel to the first pivot axis (and identical with the first pivot axis in the embodiment of Fig. 1):

Publication E4 was acknowledged to be the closest prior art. 

The opponent filed an appeal after the opposition had been rejected. It argued that document E4 disclosed embodiments covered by claim 1, taking into account the common general knowledge of the skilled person. In particular, the toe clamp (reference 29 in Fig. 1 of E4) could be considered to be the front jaw. The opponent pointed out that E4 disclosed (col. 3, lines 3-9) that the toe clamp could be positioned in the pivot axis of the support. Moreover, E4 explicitly disclosed (col. 2, lines 42-45) that any holding device allowing to shift the boot while holding it could be used, such as for example front jaws of known bindings for cross-country skiing. Therefore the skilled person would have envisaged to use the “Diamir” binding known from document B19. By replacing the toe clamp of E4 with the front jaw of this binding, a binding according to claim 1 was obtained.

[…] Claim 1 differs from E4 in that the rear support part (reference 12 in E4) is articulated pivotal about a second pivot axis substantially parallel to the first pivot axis (reference 8 in E4). [2.2]

The statements of the appellant concerning the disclosure of document E4 do not invalidate this finding. [2.3]

On the one hand, the toe clamp 29 cannot be considered to be a front support part within the meaning of Claim 1. As a matter of fact, the front support part is part of the ski boot support and has to support the boot. In this it differs from the toe clamp 29, which only has a holding function. It is designed to hinder the boot from detaching upwards and from displacing laterally, respectively. [2.3.1]

On the other hand, the document E4 does not teach, neither explicitly nor implicitly, that any holding device, and in particular the front jaw “Diamir” known from B19, can be used as front jaw.

The Board considers that the skilled person reading a document does not construe individual parts of the disclosure (einzelne Offenbarungsstellen) in isolation but rather in the context of the document as a whole (T 312/94 [2.1]; T 860/06 [1.1.3]).

In the present case, the binding for alpine touring disclosed in E4 aims at a solution to the problem of reducing the lifting effort (Hubarbeit) of the skier. See column 1, lines 37-41.

[“It is the object of the invention to improve a binding for alpine touring of the kind presented above such that the lifting effort when practising alpine touring is reduced even more. Moreover, in many applications the use of a return spring is to be avoided.”]

However, in column 1, lines 28-32 it is disclosed that when bindings for alpine touring having a front releasing boot sole support (vorderer auslösender Sohlenhalter) are used, it is not possible to reduce the lifting effort.

[“Bindings for alpine touring having a front releasing boot sole support necessitated an even greater distance between the boot toes and the pivot axis in order to reach a pivot angle of 90°. Here the lifting effort was still much greater.”]

When reading document E4 the skilled person would, therefore, learn that the goal could not be reached with such a binding for alpine touring. Therefore, he/she would not interpret the expression “holding device” (Haltevorrichtung) in column 2, lines 42-53 to encompass a releasing holding device such as the “Diamir” front jaw of B19, but only front jaws without security function. [2.3.2]

Therefore, E4 does not disclose all the features of claim 1 and is not novelty-destructive for the claimed subject-matter. [2.4]

To read the whole decision (in German), click here.