T 984/07 – For An An

Claim 1 of auxiliary request 1B on file corresponded to the following amendment of claim 1 as granted (click to enlarge):

The Board examines whether the amendment complies with the requirements of A 123(2):

[2.1] Claim 1 of this request includes in particular the feature that the “downstream terminations (188, 187) of the opposed surfaces are each sloping away from respective planes defined by the opposed flow restricting surfaces (156, 158) at an angle (β) from 5 to 90°” (emphasis added by the board).

With this amendment, the appellant seeks protection for an apparatus having downstream terminations (188, 187) which do not necessarily slope away from the opposed flow restricting surfaces with the same angle (β), as in the set of claims maintained by the opposition division, but which slope away therefrom with angles (β) which may be different one from another.

[2.2] The appellant submitted that the above amendment was in particular disclosed in the application as filed in the second paragraph at page 13, which reads:

“More generally, wall effects from the valve surface 156 and valve seat 158 will not otherwise arise as long as the chamfering angle β, which is illustrated as 45 degrees, does not approach the angle of divergence of the turbulent mixing layer, α, which is 5.7 degrees. Usually, the angle β is at least 10 degrees to avoid the risk of any attachment of the laminar flow to the wall.”.

[2.3] As regards the teaching of the passage just cited, the board can accept the appellant’s arguments that:

− the skilled person gets the clear and unambiguous teaching from this passage that wall effects (i.e. any attachment of the laminar flow to the wall) occur at both the valve surface and the valve seat;

− the solution to avoid this problem is to provide a chamfering angle β for both the valve surface and the valve seat;

− the scope of protection is not limited to the embodiment illustrated in Figure 6 with the same chamfering angle β (= 45°) at both the valve surface and the valve seat.

The board however does not accept the further argumentation of the appellant that the two chamfering angles β had clearly and unambiguously not to be the same, because the passage in question is without any doubt totally silent as to the question whether the chamfering angles at the valve surface and at the valve seat might be identical or different.

[2.4] In the board’s view, the above amendment to claim 1 of this request does not meet the requirements of A 123(2) for the following reasons:

− The application as filed does not explicitly disclose that the angle (β) at the valve surface termination can be different from the angle (β) at the valve seat termination.

− In Figures 3, 5 and 6 - reproduced below - the sloping angle at the valve seat termination (187) is manifestly the same as the angle at the valve surface termination (188):

− The passage at page 9, lines 20 to 23 of the application as filed

[“on the downstream, low pressure side of the gap 102, the valve seat slopes away from the valve surface at an angle from 5 to 90° or greater, 45° in the illustrated embodiment”]

discloses […] that the valve seat slopes away from the valve surface at an angle (β) from 5 to 90°. The passage does not however disclose that the valve surface simultaneously slopes away from the plane defined by the opposed flow restricting surface at an angle of 5 to 90°, let alone that these angles might be different.

[2.5] In this context, there is no direct and unambiguous disclosure in the application as filed for the amendment to claim 1 of this request. This amendment corresponds to a broadening of the original disclosure as regards the introduction of the word “an”.

Hence, it is concluded that claim 1 of the auxiliary request 1B does not meet the requirements of A 123(2).

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