The present appeal was filed after the Examining Division (ED) had refused an application claiming a data rate negotiation method. The Board deals with the question of what should be considered to be the closest prior art.
[3.1] A home phone line network, a typical hardware-software interface for it and a method for rate negotiation are disclosed in the section of the application entitled “Background of the Invention” […]. The technical problem set out in the description is formulated on the basis of this acknowledged background art.
[3.2] According to established case law of the Boards of Appeal (see for example: T 654/92, T 691/94, T 87/01, T 730/05, T 1449/05, T 211/06), the prior art cited and acknowledged in a patent application for the purpose of formulating the technical problem may be used as starting point for assessing novelty and inventive step (cf. in particular T 87/01 [5.2]).
[3.3] The appellant did not respond to the board’s observations concerning the public availability of the HPNA 2.0 specification document submitted with the letter of 19 October 2006 […] and thus it has not been established to the board’s satisfaction that this document was in the public domain at the claimed priority date.
However, the inventive step argumentation submitted by the appellant in its letter of 1 June 2010 was based on the omission of a specification in the HPNA 2.0 standard as to how the PHY MSE reaches the upper level driver […]
thereby implicitly accepting the opinion expressed in the board’s communication that the background art acknowledged in the application represents the closest prior art.
In view of the foregoing, the board judges that despite the absence of a specific publicly available document relating thereto this background art may be taken as the closest prior art in the present case particularly in view of the fact that the appellant has not made any attempt to resile from it.
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