Thursday, 28 June 2012

T 412/09 – A Consistent Picture

This is an appeal against the refusal of an application. The decision contains a useful reminder on the link between patent documents and common general knowledge (CGK).

[2.1.3] In its letter of reply the appellant disputed that the image acquisition procedure referred to above belonged to the CGK and submitted that according to the established case law patents cannot be used to establish CGK.

While the Board concurs with the appellant that the CGK of the person skilled in the art is, as a general rule, established on the basis of encyclopaedias, textbooks and the like (see decision T 890/02 [2]), contrary to the appellant’s submissions this does not meant that a disclosure is automatically discarded as evidence in this regard for the mere fact of being disclosed in a patent specification. On the contrary, the case law contemplates exceptions to the general rule mentioned above and allows in particular circumstances the establishment of CGK on the basis of the content of patent specifications (see T 890/02 [2], and “Case Law of the Boards of Appeal” EPO, 6th edition, 2010, chapter I, section C.1.5 and last paragraph of section C.3.2.6), and in particular when a series of patent specifications provides a consistent picture that a particular technical procedure was generally known and belonged to the CGK in the art at the relevant date (see decisions T 151/05 [3.4.1, 4.1, 4.3] and T 452/05 [2.4.1, paragraph (b)(ii)]).

[… D]ocuments A1, A2 and A3 provide a consistent picture that setting the exposure time of a CCD camera to be identical to or an integer multiple of the display period of a rapidly varying periodic display to be captured by the camera constituted a common practice in the art. Therefore these documents constitute prima facie evidence that this practice constituted CGK at the priority date of the application in suit, and the appellant’s mere submission that patents cannot be used in establishing CGK is insufficient to rebut or displace this evidence or to cast doubts on the CGK under consideration.

The appellant submitted that documents A1 to A3 pertain to technical fields different from that of the claimed invention […]. The Board notes, however, that in the circumstances of the present case the question is not whether the skilled person would be expected to consult these documents when operating the apparatus of document D2, but whether the documents constitute evidence supporting the position that the common practice mentioned above was generally known to him. In documents A1 to A3 different value ranges of the exposure time of the CCD camera (in particular, “2 or more” periods in document A1 (paragraph [0058]), “a few tens” in document A2 (paragraph [0041]), and “the shortest [period] ... multiplied by an integer” in document A3 (paragraph [0176])) are selected in order to cope with the specific technical situations encountered in the respective technical fields; however, it is taken for granted in the disclosure of all these documents that, when capturing a periodic display with a CCD camera, the value of the exposure time of the camera is to be selected to correspond to the display period or to a multiple integer of the same. This procedure relates to the operation of the CCD camera itself and not to the specific technical field in which the camera is being used in each of documents A1 to A3.

[2.1.4] Having regard to the above considerations, the Board concludes that the apparatus defined in independent claim 2 of the main request does not involve an inventive step (A56).

Should you wish to download the whole decision, just click here.

The file wrapper can be found here, and a French summary of the decision here.