T 2289/09 – Unclear Yet Relevant

Claim 1 of the main request before the Board read:

An apparatus (1) for a sorting system comprising an activating member (2), a fastening bracket (3), and a discharge arm (4) which at an end part (5) is pivotally connected with the fastening bracket (3) at a side (6) of a conveyor (7), where said discharge arm (4) by means of said activating member (2) is adapted for being swung between a passive position (9) approximately parallel to said side (6) of the conveyor (7) and a number of active angular positions (8) in relation to the conveying direction (A) of the conveyor (7), the activating member (2) being constituted by an electrically driven stepping motor or servomotor having a control unit being adapted for determining a pattern of motion and/or speed profile of the discharge arm (4), and that said control unit is a adapted for receiving at least one control signal from a number of sensors (16) being adapted for determining the lateral and longitudinal position of an item (11) on the conveyor (7), and which are operatively connected with the activating member (2), wherein said control unit is pre-programmed and adapted for utilizing said control signal from the sensors (16) for determining a pattern of motion and/or a speed profiler (correctly: speed profile) of the discharge arm (4) for causing the discharge arm (4) to lead the items (11) selectively to a predetermined discharge position among a number of discharge positions (B, C, D) along said side (6) of the conveyor (7).

[1.3] In addition to the features of claim 1 as maintained present claim 1 comprises the group of features defining that

(g) said control unit is pre-programmed and adapted for utilizing said control signal from the sensors (16) for determining a pattern of motion and/or a speed profile of the discharge arm (4) for causing the discharge arm (4) to lead the items (11) selectively to a predetermined discharge position among a number of discharge positions (B, C, D) along said side (6) of the conveyor (7).

[1.4] Concerning the understanding of the group of features (g) it is common ground that these features encompass three alternatives concerning the control unit which is pre-programmed and adapted for utilizing the control signal from the sensors for determining

(g1) a pattern of motion of the discharge arm

(g2) a speed profile of the discharge arm and

(g3) a pattern of motion and a speed profile of the discharge arm (combination of alternatives (g1) and (g2))

for causing the discharge arm to lead the items selectively to a predetermined discharge position among a number of discharge positions along the side of the conveyor.

[1.5] Concerning the understanding of the alternatives (g2) and (g3) in the context of the group of features (g) and the combination of features (a) to (f) the meaning of the expression “speed profile” remained unclear, as asserted by the [opponent].

[1.5.1] The explanation given by the [patent proprietor] that the expression “speed profile” is linked to the speed and relative distance of adjacent items on the conveyor in conveying direction and the effect this has on the control of the discharging arm […] is, as indicated by the Board during the oral proceedings, in contradiction to the group of features (g) referring explicitly but also exclusively to a “speed profile of the discharge arm”.

[1.5.2] The r[patent proprietor’s] explanation is, as likewise indicated by the Board during the oral proceedings, furthermore without any support in the disclosure of the patent in suit as will be discussed in the following concerning the compliance of the group of features (g) with the requirements of A 123(2).

Admissibility of amendments in claim 1

[2.1] Although, as indicated above, the alternatives (g2) and (g3) remain without a clearly derivable meaning where is concerns the speed profile it has not been disputed that their introduction into claim 1 adds information to the teaching of this claim.

The group of features (g) encompassing these alternatives thus cannot be ignored when examining these amendments under A 123(2). […]

The patent was finally revoked because of non-compliance with A 123(2).

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

The file wrapper can be found here.