In the present case, the patent proprietor, whose patent had been revoked by the Opposition Division, argued that there was no technical teaching in document E3, a review article published in a professional magazine (“Funkschau”). Citing decision T 172/03, the proprietor asserted that E3 could not be used as a starting point for assessing inventive step.
In T 172/03 the patent proprietor complained that the Examining Division had rejected its application based on some fictitious prior art. The Board came to the following conclusion:
… It can hardly be assumed that the EPC envisaged the notional person skilled in the (technological) art to take notice of everything, in all fields of human culture and regardless of its informational character. A consistent construction of the patentability provisions requires the term “everything” in A 54(2) to be understood as concerning such kind of information which is relevant to some field of technology.
From these considerations it follows that anything which is not related to any technological field or field from which, because of its informational character, a skilled person would expect to derive any technically relevant information, does not belong to the state of the art to be considered in the context of A 54 and A 56, even if it had been made available to the general public before the relevant priority date.
However, in the present case, the Board does not find T 172/03 to be applicable:
[3.3] E3 reviews cable television networks in the USA before the priority date. In the board’s view, the skilled person would derive technically relevant information from such a review, such as information on the different kinds of television programs transmitted in the USA and on the (interactive) services offered for subscription or purchase using, for instance, a back channel. Thus the circumstances differ from those referred to in case T 172/03 [10].
Consequently the board does not accept the appellant’s argument that there is no technical teaching in E3.
In the judgement of the board E3 is comprised in the state of the art as defined in A 54(2).
To read the whole decision, please click here.
1 comments:
I have to admit that the formulation of point 10 of T 172/03 is at least somewhat confusing, but reading the whole decision should make clear that it does not at all support the view of the patent proprietor.
The point of T 172/03 is that non-technical information does not have to be shown to be part of the state of the art (and indeed does not belong to the "state of the art" within the meaning of Art. 54(2)), but can simply be assumed to be known by the skilled person (at least for the purpose of inventive step).
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