Monday, 25 January 2021

T 2305/14 - claim covers not-enabled embodiment

A seismic survey vessel (10) towing an array of streamers (12), each with a a plurality of streamer positioning devices (18) ('birds') 

The fourth request in this opposition comprises the feature:
towing an array of streamers with the seismic survey vessel, each streamer having a plural­ity of streamer positioning devices there along, each of the streamer positioning devices having a wing used to control the vertical and lateral position of the streamer positioning device

In particular, the the streamer positioning devices (the 'birds')  may each have a single wing. The Boards does not consider this option enabled by the description. 

 

 

Reasons for the Decision
(...)
3. Fourth to seventh auxiliary requests - sufficiency of the disclosure
3.1 In the decision under appeal the opposition division held that the invention was sufficiently disclosed in the patent (see point 3.2 of the Reasons).
3.2 It is established jurisprudence of the Boards of Appeal to consider the disclosure of an invention to be only sufficient it it allows the invention to be performed in the whole range claimed (see Case Law of the Boards of Appeal of the EPO, 9th edition 2019, sections II.C.5.4).
3.3 In the present case, respective claim 1 of the fourth to seventh auxiliary requests re­lates to a method of controlling streamer positioning devices using a control system distributed between a global control system and a local control system loca­ted on each streamer po­si­tioning device. In particular, it is speci­fied in these claims that each of the stream­er posi­tioning de­vices has a wing which is used to control its verti­cal and lateral position (features (a)4 and (a)5, respec­tively) and that the local control system is used to adjust the angle of the wing (fea­tures (c) and (c)1, respectively).
It is therefore claimed in each respective claim that each streamer positioning device has a single wing which is used to control the vertical and lateral position of the streamer positioning device. This is common ground between the parties.
It has to be considered whether the patent as a whole provides sufficient information for the skilled person to carry out - using common general knowledge - such a method of controlling streamer positioning devices, where each streamer positioning device has a single wing which is used to control its vertical and lateral position.
3.4 Corresponding to the disclosure in the parent application mentioned under point 2.5 above, the patent specification only contains a detailed description of one type of streamer position­ing devices having two independently movable wings (see Figures 2 and 3 and para­graphs [0024] to [0027]). Moreover, the passage of the parent application men­tioned under point 2.6 above concerning alternative bird designs is also contained in the contested patent (see paragraph [0023]). These alternative bird designs exhibit either more wings than the preferred two-wing design, namely three or four wings, or "one full-moving wing" albeit with "ailerons". As the skilled person knows, the latter are secondary wings or fins, which usually form part of the trailing edge of the primary wing and are used for controlling the roll angle of the device.
Hence, neither the bird design described in detail nor the disclosed alternative designs exhibit only a single wing. In particular, the alternative "one full-moving wing" design comprises said ailerons which are essential in providing control of the roll angle of the bird and thus, together with the full-moving wing, of its vertical and lateral motion.
Accordingly, the patent specifi­ca­tion does not contain any explicit instruc­tions to the skilled person on working the invention with birds having only a single wing which is used to control its vertical and lateral position.
3.5 The appellants/p argued that the skilled person would be aware of rudders used for controlling the lateral position of a marine vessel and have no difficulty in carrying out the invention across the full breadth of the claims.
However, the use of birds attached to streamer cables for providing - like rudders - lateral position control of the cables is neither described nor hinted at in the patent specification. Furthermore, there is no evidence on file showing that this is part of the common general knowledge of the skilled person, either. Rather, it appears from the description of the prior art in the patent specification (see paragraphs [0004] and [0005] cited in part below) that birds were primar­ily known for provid­ing depth control in order to keep the stream­ers at a constant depth and that the addi­tion­al control of the lateral position provided further benefits (e. g. reducing the chance of tangling adjacent streamers):
"The streamers are typically towed at a constant depth of approximately ten meters, in order to facilitate the removal of undesired 'ghost' reflections from the surface of the water. To keep the streamers at this constant depth, control devices known as 'birds', are typically attached at various points along each streamer between the deflector and the tail buoy [...] While the majority of birds used thus far have only controlled the depth of the streamers, additional benefits can be obtained by using properly controlled horizontal steerable birds [...] The benefits that can be obtained by using properly controlled horizontal steerable birds can include reducing horizontal out-of-posi­tion conditions that necessitate reacquiring seis­mic data in a particular area (i. e. in-fill shoot­ing), reducing the chance of tangling adjacent stream­ers, and reducing the time required to turn the seismic acquisition vessel when ending one pass and beginning another pass during a 3D seismic survey."
Moreover, even though it might be imagined that the wing of a bird, when used like a rudder, could in principle provide lateral position con­trol of the streamer cable it is obscure how the same wing could also pro­vide vertical position control of the streamer cable. It is in line with the disclosure in the patent speci­fi­cation and with the general understanding of the skilled person that there is only one control parameter for controlling the wing of a bird, namely its angle of orientation. Hence, it is not evident for the skilled person how the control of this single parameter could provide position control in two different directions, namely both lateral and vertical position control.
3.6 In view of the above, the board concludes that the patent does not disclose the invention as claimed accord­ing to any one of the ­fourth to seventh auxiliary requests in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art in the whole range claimed (Articles 83 and 100(b) EPC 1973).
4. Conclusion
Since the European patent contains subject-matter extend­ing beyond the content of the parent application as filed (main request and first to third auxiliary requests) and does not disclose the inven­tion in a manner suffi­ciently clear and complete for it to be carried out by a person skilled in the art (fourth to seventh auxil­iary requests), the patent has to be revoked (Article 101(3)(b) EPC and Article 111(1) EPC 1973).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
This decision  T 2305/14 (pdfhas European Case Law Identifier:  ECLI:EP:BA:2020:T230514.20200212. The file wrapper can be found here. Illustration is figure 1 in the contested patent EP 1 850 151 B1.

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