T 1657/09 – Putting One’s Finger On The Difficulty

The opponent appealed against the decision of the Opposition Division (OD) to reject the opposition.

Claim 1 of the main request before the Board read (my English translation):

Gate leaf (Torblatt) for a sectional gate, in particular a roll-up gate (Deckengliedertor), wherein a wicket door (Schlupftür) is integrated in the gate leaf, the wicket door comprising a door leaf (Türblatt) and a frame (Zarge) for framing the door leaf, the gate leaf being movable along a predetermined path comprising an arcuate portion between an opening position and a closure position, wherein the gate leaf comprises a plurality of panels which are arranged one behind the other along the predetermined path and which are joined to one another [by means of] articulations comprising articulation axes that run perpendicular to the predetermined path, and wherein the frame comprises at least two segments(40,50;340,350) that are fixed to successive panels (10,20) of the gate leaf,

characterised in that at least in the closure position a distance (x) corresponding to at least the thickness of a finger is left free between the segments (40,50), in a direction running parallel to the predetermined path, at least in the region of a boundary surface (14,24) of the gate leaf that is facing away from one of the articulation axes (32), [feature 1.5]

and/or the width of the mouth region (Mündungsbereich) of a gap (62) formed between the segments (50,60) facing the boundary surface (14,24) facing away from one of the articulation axes (32) along part of the arcuate portion of the predetermined path that can still be reached with the hands when the gate is being operated, is less than what is needed to allow a finger to be inserted. [feature 1.6] (my emphasis)

The Board raises an insufficiency objection:

[2] The characterising part of granted claim 1 consists of the two features 1.5 and 1.6, which are related to each other by means of an “and/or”.

The [patent proprietor] points out that the distance (x) between the segments (feature 1.5) and the width of the gap (62) between the segments (feature 1.6) are two different measures so that it was perfectly possible that the first was greater and the second smaller than a finger. This could be seen from figures 1 and 2, wherein an obvious error had occurred in figure 2 in the representation of the line of reference (62).

However, it is not apparent from the patent as a whole that the line of reference (62) in figure 2 is obviously erroneous. It is even less obvious how this alleged error should be corrected. The opposed patent does not disclose either that the width of the gap is to be measured at a different position than the distance between the segments. Claim 1 rather defines the distance between the segments as the distance “at least in the region of a boundary surface of the gate leaf that is facing away from one of the articulation axes”, “in a direction running parallel to the predetermined path” and the width of the gap is defined as the width of the mouth region of a gap formed between the segments facing the boundary surface facing away from one of the articulation axes. As it is not indicated how the region and the mouth region differ, it is to be assumed that the distance (x) and the width of the gap (62) have the same measure (Maß), i.e. the size of the gap between the frame elements.

Feature 1.5 requires this measure to correspond to at least the thickness of a finger, whereas feature 1.6 requires the same measure to be less than what is needed to allow a finger to be inserted. As the same measure cannot simultaneously be greater and smaller than a given value, the claimed “and”-relationship is not achievable. Claim 1 does not comply with the requirements of A 83.

The patent was finally revoked.

To download the whole decision (in German), click here.

The file wrapper can be found here.