The applicant filed an appeal against the decision of the Examining Division (ED) to refuse the application under consideration for lack of inventive step.
The discussion was centred around document D2, an article on the ISO/IEC MPEG-2 standard, published in the Journal of the Audio Engineering Society. Based on D2 as closest prior art, the Board found the invention to lack inventive step.
It then dealt with the applicant’s allegation that the ED had committed a substantial procedural violation. According to the applicant, the ED did not present evidence to support its argument that the standard did not require calculation of the number of sign bits each time the code length was calculated for an unsigned codebook, beyond stating that D2 does not disclose this feature. Since document D2 was merely a summary of the standard, it was not valid to draw any conclusion from the absence of any relevant teaching in that document. In this respect, the appellant referred to the T 578/06 [21] (also discussed on this blog).
Here is the Board’s answer:
[4.1] The appellant has argued that in reaching its conclusion that, contrary to what is stated in the summary of the prior art in the present application, the ISO/IEC 13818-7 standard does not require that the number of sign bits be calculated and added to the code length individually in each operation of the code length calculation section, the ED made a substantial procedural violation.
This argument is based on the appellant’s contention that, since the document D2 represents only a summary of the standard, this summary giving no details of the codebook selection procedure, and since the application clearly taught that the standard did contain such a requirement, the burden of proof lay on the division to establish that such a requirement was not present in the full standard. In this context he referred to the decision T 578/06 [21], which indicates that the burden of proof for an allegation lies with the person raising that allegation.
[4.1.1] The board observes in this context that the prior art described in the application which is at issue is specified in the application as being the MPEG2-AAC standard defined in ISO/IEC 13818-7. The board notes moreover that the document D2 is a description of the main features of that standard (as stated for instance in the abstract of that document), which appears to have been written by a group of authors who were involved in the preparation of the standard. Furthermore, document D2 appears to constitute provisions of the standard itself (i.e. of document D4, which is the first edition of ISO/IEC 13818-7, see in particular page 3, section 2 “Normative references”, which refers to D2). As such, the board considers that the document D2 represented a reasonable basis to use for a prima facie assessment of whether the prior art acknowledgement in the application was correct, and that the objection raised by the ED in this respect cannot therefore be considered as being “mere opinion”, without proof, as argued by the appellant. As a consequence, the board considers that when the division raised this objection, they did so in a manner which met the established criteria for burden of proof (i.e. those referred to in the decision cited by the appellant).
[4.1.2] Moreover, the board considers that, given the nature of the document D2 as described above, arguments based on that document should be assumed to be correct unless it could be demonstrated that the teaching of D2 was inconsistent with the standard (i.e. document D4) itself. By raising this objection in the annex to the summons to oral proceedings (OPs), the ED gave the appellant (then applicant) the opportunity to demonstrate such an inconsistency. This he attempted to do by presenting arguments based on the document R1, which is understood to comprise excerpts from a later version of the standard. From the minutes of the OPs before the ED, it is apparent that those arguments were discussed in detail at those OPs. In section II. 4 of the decision under appeal the ED presented detailed reasons, based on that discussion, as to why they were not convinced by those arguments.
[4.1.3] For the reasons indicated in the previous two paragraphs, the board concludes that the manner in which the ED addressed the contradiction between D2 and the summary of the prior art in the present application did not involve any procedural violation.
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