T 154/10 – Totus Pro Parte

This is an appeal by the opponent against the maintenance of the opposed patent in amended form.

Claim 1 as granted referred to a braking system but claim 1 of the patent as maintained by the Opposition Division was directed to a railway vehicle:

A braking control system with anti-slip and anti-lock functions for the wheels, for a railway or tramway vehicle provided with a pneumatic braking system including brake control apparatus (BCA) to which is connectable a plurality of electro-pneumatic valve units (G1-G4) for control of the brake cylinders (BC1-BC4) associated with the wheels/axles (1-4) of the vehicle, and a braking control system (A,B; BCA; G1-G4; S11-S42) with anti-slip and anti-lock functions for the wheels; the said valve units (G1-G4) being controllable by control means (A, B) in such a way as to allow, selectively, application of a braking pressure to the associated brake cylinders (BC1-BC4), holding of this pressure, and release of the pressure of the said brake cylinders (BC1-BC4);

the system being characterised in that

each axle (1-4) of the vehicle has associated therewith at least one first and respectively one second angular speed sensor (S1, S2; ...; S41, S42) are associatable with each axle (1-4) of the vehicle independent from one another;

the said electro-pneumatic valve units (G1-G4) include respective solenoid control valves (12-15) with first and second independent control inletsinput units (G11, G12); and

the control means (A, B) comprise

first and second independent electronic control units (A, B);

the first speed sensors (S11,...; S41) of each axle (1-4) and the first control input units (G11,...; G41) of the said valve units (G1-G4) being connected only to the respective first and control unit (A);

the second speed sensors (S11, S12; ... ; S41, S42) of each axle (1-4), as well as to the respective first and the second control inlet input units (G11, G12; ... ; G41, G42) of the said valve units (G1-G4), and being connected only to the second control unit (B); said control units (A,B) being predisposed to transmit from one to the other a respective state signal or vital signal (L1; L2) indicative of its operating condition;

the first unit (A) being arranged to perform a wheel anti-slip procedure;

the second unit (B) being arranged to perform a wheel anti-lock procedure when the state signal (L1) transmitted to it from the first unit (A) indicates that this latter is functioning normally and to perform both the wheel anti-lock procedure and an anti-slip procedure when the state signal (L1) transmitted to it from first unit (A) is indicative of a malfunction or breakdown condition of this latter. (deletions and additions with respect to claim 1 as granted are highlighted)

The opponent raised objections under A 123.

Admissibility of the amendments under A 123(2)

[2] The Board does not agree with the [opponent] when it contends that the application as originally filed did not provide any basis for the amendment of the claimed subject-matter to a “railway vehicle” and that this amendment represented an undisclosed selection from a list of various types of vehicles (including also tramway vehicle).

The application as originally filed EP-A-1 577 185 (hereinafter referred to as D0) clearly disclose that the braking control system of the invention may be incorporated in a railway vehicle or a tramway vehicle […]. Moreover, […] D0 specifically disclose[s] a railway or tramway vehicle into which the claimed braking system is incorporated. Since the application as originally filed discloses both the incorporation of the claimed braking system in a tramway vehicle or, alternatively, in a railway vehicle, there is a basis for limiting the claim to the combination of a railway vehicle and the braking control system of claim 1 as granted.

[3] Concerning the question of the connection between the control units A,B and the speed sensors, it is true that figure 1 as originally filed contains some inconsistencies (S11 associated with letter B in the bottom left-hand corner of the figure is shown associated with control unit A in the top left portion of the figure).

However, in the whole context of the original disclosure […], there is no ambiguity as to the fact that the first speed sensors of each axle 1-4 and the first control input units of each valve units G1-G4 are connected only to the first of the control units and the second speed sensors of each axle 1-4 and the second control input units of each said valve units G1-G4 are connected only to the second of the control units. For the person skilled in the art, it is obvious that a mere erroneous permutation has occurred when indexing the sensors of the first and of the third axles of figure 1.

[4] As a matter of English language and from a pure semantic point of view, it might be criticized that, in feature (i), the expression “connected only to the first (respectively second) control unit” could be interpreted as meaning “connected only to the first (respectively second) control unit and not connected to any further element”. However, the Board agrees with the general principle of interpretation as set out in T 190/99, according to which, when considering a claim, the skilled person should rule out interpretations which are illogical or which do not make technical sense. He should try, with synthetical propensity, i.e. building up rather than tearing down, to arrive at an interpretation of the claim which is technically sensible and takes into account the whole disclosure.

It is obvious to the skilled person that the respective sensors and control input units may have other connections, for example to the ground or to an electrical supply or even mechanical connections as mentioned by the [opponent]. However, in the present case, the “connections” are to be interpreted in the technical context of the claimed subject-matter with due consideration of the other technical features of the claim and of their technical significance.

Before introducing feature (i), the claim specifies that the electro-pneumatic valve units G1-G4 include respective solenoid valves with first and second control input units. The expression “control input units” indicates here that these two units input the control signals to the electro-pneumatic valve units […]. The person skilled in the art knows that the control of the braking is performed through control signals which are transmitted in accordance with the anti-slip and anti-lock control procedure performed by the control means […] whereby the control means have been specified in the claim as comprising first and second independent control units.

Therefore the features “the first speed sensors of each axle and the first control input units of the said valve units being connected only to the first control unit” and “the second speed sensors and the second control input units of the said valve units being connected only to the second control unit” have to be interpreted in the context of the possible connections that the respective two sensors and two control input units may have with the first and second control units A and B only […]. The person skilled in the art would not consider connections which are totally irrelevant from this context. Therefore the wording “connected only to” does not introduce subject-matter that extend beyond the content of the application as originally filed.

Admissibility of the amendments under A 123(3)

[5] For the [opponent], modifying claim 1 such that it is now directed to “a railway vehicle” while claim 1 as granted is directed to “a braking control system” amounted to an extension of the protection conferred which contravened A 123(3).

[5.1] The Board does not agree. When deciding whether a claim has been amended in such a way as to extend the protection conferred, the determination of the extent of protection has to be carried out in accordance with A 69(1) by interpretation of the terms of the claim. National laws of the Contracting States in relation to the infringement or, for example, the question whether the financial value of a railway vehicle is greater than that of a braking control system, need not to be taken into account in this respect (See G 2/88 [3.3]).

[5.2] Considering the question of the protection conferred by a claim directed to a physical entity, it is a general principle established by the jurisprudence of the Boards of Appeal that a patent which claims a physical entity per se confers absolute protection upon such entity, namely protection not only for such physical entity but also for all uses or all physical activities of such entity, for instance the integration into a larger entity (see G 2/88 [5]; T 514/06 [ 5.1.1-2]).

[5.3] In the present case, claim 1 as granted was directed to a braking control system for a railway. This conferred an absolute protection on any claimed braking control system, including those which may be installed and have not yet been installed and those which have been installed in a railway vehicle, this being the vehicle for which they undoubtedly have been specifically conceived […].

[5.4] Therefore the scope of claim 1 as granted already included the incorporation of the granted braking control system into a railway vehicle and the amended formulation “a railway vehicle… and a braking control system” is in effect a claim to a braking control system when incorporated in the railway vehicle. The change of the claimed subject-matter from “a braking control system” to “a railway vehicle… and a braking control system” confers less protection and is actually a limitation of the scope of protection initially conferred by the patent as granted since it is now required that the braking control system is incorporated in a railway vehicle (see also T 514/06 [5.1.1-2]).

The decision T 1898/07 which was cited by the [opponent] refers to a change of the claimed subject-matter from “a liquid composition” to “a package kit containing a syringe pre-filled with liquid composition”. This situation differs drastically from the present one, because, as explained in T 1898/07 [22], the liquid composition could not be seen as a feature of the package per se.

Claim 1 has therefore not been amended in such a way as to extend the protection conferred.

I very much prefer this approach to what we have seen, for instance, in T 867/05 (here).

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