Wednesday, 5 June 2013

R 15/12 – Error Of Logic

This petition for review was filed after Board 3.2.04 had revoked the opposed patent (claiming a dry-cooking fryer) in decision T 1572/11.

I found the discussion of “adverse effect 2” instructive:

*** Translation of the French original ***

[3] The letters of the petitioner […] as well as its declarations made during the oral proceedings (OPs) before the Enlarged Board (EBA) make clear that, although the petitioner considers that the ‘adverse effect 1’ as such would justify setting aside the decision, its main complaint is directed at the alleged incoherence between the decisions of the Technical Board in regard of the main request and the third auxiliary request. Even if one or the other could possibly be justified (which the petitioner contested), they could not both be. […]

[9] According to the petitioner, the reasons invoked by the Board for dismissing the third request for lack of novelty are not consistent with the reasons for dismissing the main request. Consequently, one of these requests has to be admissible. It was only when reading the written decision that the petitioner could realise and understand that it had lost an opportunity to defend its case.

[10] As far as ‘adverse effect 2’ is concerned, the EBA can accept that it complies with R 106.

[11] Notwithstanding its assertions, the petitioner tries to challenge the correctness (bien-fondé) of the decision. Incidentally, this can be seen from the petition where the petitioner states that:
“the decision of the Board of appeal is affected by another substantial procedural violation because the written decision contains a clear logical fallacy …” […]

“Moreover, the Board attributes two distinct functions to the same technical means within a few pages of the decision …” […]

“This blatant contradiction affects the very heart of the decision, which suffers from a substantial procedural violation within the meaning of A 113, because the reasoning that led the Board to declare claim 1 of the patent as granted to lack novelty would have had to lead it to find claim 1 of the third auxiliary request to be novel, or vice versa.” (emphasis by the Board)
[12] Although the petitioner tries to establish that what it considers to be a contradiction is a violation of its right to be heard within the meaning of A 113(1) […], its complaint really boils down to finding the decision to be erroneous (either in regard of the main request or in regard of the third auxiliary request). In this context it has to be noted that the arguments related to novelty have been dealt with in detail during the written proceedings and the OPs, as well as in the reasons given by the Board […]. Moreover, the novelty of the claimed subject-matter has to be examined for each request. When doing so, it is sufficient [for the claim to be found to lack novelty] that one interpretation of the prior art destroys the novelty of the subject-matter under consideration, even if the interpretation is prima facie different in both cases. […]

[13] As far as […] ‘adverse effect 2’ is concerned, the petition for review is clearly unallowable.

Should you wish to download the whole decision (in French), just click here.

The file wrapper can be found here.