Tuesday, 13 June 2017

T 648/12 - New document introduced by Board

Non-electronic exercise equipment

The application concerned a training device which receives an electronic training script that defines a workout sequence in which a user is instructed to perform a plurality of activities. The user is prompted for a next activity when a defined quantity of a previous activity is detected. 
The application was rejected on the basis of document D1 which is an electronic system to monitor and train an individual on proper motion during physical movement. The Board agrees with the applicant that this is not relevant for the application. Unfortunately for the applicant, the Board knows from its own experience of other trainings systems, and send the case back for further investigation. 

Summary of Facts and Submissions
VI. The wording of independent device claim 1 of the main request reads:
A training device, comprising:
a receiver (215) arranged to electronically receive data;
a sensor (221) arranged to detect at least one physical performance characteristic; and a display unit (219);
the training device being characterized in that it is for receiving and employing an electronic training script, and being further characterized in that:
the received data is an electronic training script defining a workout sequence in which a user is instructed to perform a plurality of activities, the script further defining quantities for the plurality of activities;
the at least one physical performance characteristic detected by the sensor (221) is a characteristic of at least one of the activities in the workout sequence; and
the display unit (219) is arranged to prompt the user to perform a next activity of the plurality of activities in the sequence designated by the electronic training script in response to a measurement of the at least one physical performance characteristic detected by the sensor indicating completion of the defined quantity of a previous activity in the sequence.
Reasons for the Decision
1. Inventive step starting from document D1 (Article 56 EPC 1973)
1.1 In the appealed decision, the examining division held that the claimed subject-matter did not involve an inventive step in view of the combined teaching of documents D1 and D2.
1.2 Document D1, which was considered as closest prior art in the appealed decision, is directed at solving the problem of preventing incorrect movements with the aim of reducing injuries (column 1, lines 58-63) and training an individual to make proper movements (column 1, line 55), or phrased otherwise, assisting in training an individual in proper posture while executing an identified physical activity (column 2, lines 49-51).
The main application is thus in an industrial setting where workers are required to perform repetitive manual tasks (column 8, lines 22-25). As the examining division correctly observed, document D1 also discloses a further application in sports (column 10, lines 62). Here, data collected by the device of D1 may be used as a tool to aid in the analysis and improvement of the individual's stroke technique in, for example, golf (column 10, lines 65 to column 11, line 6). Hence, the sports application is also directed at making proper movements / having proper posture while executing a specific physical activity.
1.3 The present application, on the other hand, is directed at enabling an athlete to perform a sequence of activities, wherein each activity is performed until an associated quantity is completed, without the athlete having to monitor continuously whether that quantity has been completed (see [56] of the application).
1.4 Document D1 does not mention any sequence of activities. Actually, the only sequence or series that is disclosed in D1 is the series of notice levels which can be uploaded to the device (column 5, lines 59-66).
These notice levels, however, do not correspond to a workout sequence in which a user is instructed to perform a plurality of activities, but rather to a plurality of degrees of (an angle of) a movement / posture associated to one single activity.
1.5 Thus, the claimed device and method are directed to a different purpose than the ones of document D1. The board is also satisfied that this difference is brought out in the technical features of the two independent claims.
In the absence of any specific suggestion in D1 to do so, the board does not see any reason why the skilled person would consider modifying the device and method of D1 such that they would serve the different purpose of guiding an athlete through a predefined sequence of workout activities.
The board thus concludes that the skilled person, starting from D1, would not be motivated to combine D1 with any other prior art document that is directed to that different purpose.
Document D2 is one of those documents. The board thus concurs with the appellant in that the skilled person, starting from D1, would not be motivated to combine D1 and D2.
2. New citation D6
From personal experience, however, the board is aware that Polar Electro Oy in the past marketed the portable training device S710. Document D6 contains archived screen shots from the manufacturer's website from February 2002 and earlier.
It appears from document D6 that the portable training device S710 was sold before the oldest priority date claimed for the present application (30 May 2002).
Furthermore, it appears from D6 that S710 could be programmed by a computer via an infrared or sonic link using "Polar Precision Performance Software".
Training programmes could be downloaded to S710 that were capable of guiding a user through an interval training involving heart rate target zones (with heart rate limit pairs and visible and audible alarms) as well as recovery intervals. Further, S710 could be used to determine distance and speed.
Hence it appears that the portable training device S710 of Polar was directed at the same purpose as the claimed invention, and in addition that most of the features of the independent claims of the present requests were present in that device.
S710 and document D6 relating to it thus seem to be highly relevant for the assessment of novelty and inventive step.
3. In view of this new citation, it appears to be appropriate to remit the case to the department of first instance (Article 111(1) EPC 1973, see also Case Law of the Boards of Appeal, 8th edition, IV.E.7.2.2).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The case is remitted to the department of first instance for further prosecution.
This decision T 0648/12 (pdf) has European Case Law Identifier ECLI:EP:BA:2017:T064812.20170425. The file wrapper can be found here. Photo by tookapic obtained via Pixabay under CC0  (no changes made).

1 comment :

  1. It is interesting to note that this is not the only case in which a Board of Appeal has introduced new prior art on its volition during examination appeal.
    In T 1079/13 and T 1880/13, BA 3.5.05 quoted two documents from the parallel case before the German Patent Office. no remittal and confirmation of the refusal.
    In T 890/12, BA 3.3.04 quoted a better CPA, but reversed the refusal.
    In T 1284/13, BA quoted a further document to complete its argumentation on inventive step. Reversal and grant.
    In T 1379/11, BA 3.5.07, the BA introduced a document from the search report, and an other one on its own volition. Decision confirmed.
    One can thus say, that in the present case the applicant can consider himself lucky that the BA remitted.
    It will be interesting to see whether other BA will also quote new documents when an applicant files an appeal after refusal.