Thursday, March 17, 2022 Paper C 2022 (Part 1 and Part 2) - EPO scores with accessible paper

The theme of this year's paper was football. Specifically, the electronic detection of goals.  

This was the second year with the online electronic paper C. Like last year, you were provided with all of the prior art in the first half, but not with all of A1's description. Last year the claims were split down the middle, with 3 claims in each half; this year the first half had 2 claims and the second half had 4 claims. 

Some felt that last year's claim split was not ideal, as most of the analysis is done in the first half. This year with one claim less to do, there was enough time to read everything. 

The application did not claim priority; thus the effective date section was straightforward. But the list of evidence made up for it, and was more challenging, with a lot of admissibility issues: A2 was a newsletter for which you would have to argue that it was available in time. A3 was clearly too late, but contained lots of information about past prior art.  A4 referred to a conference, but with the twist that the slides of the talk were provided to the participants. A5 was regular prior art and A6 a 54(3). 

Claim 1 was a special type of yarn that could be used in a ball. The yarn has a metal wire which makes it electronically detectable. 

1. A hybrid yarn (1) for use under high mechanical stress conditions, such as for a ball (9) for a ball game, wherein the yarn (1) comprises an inner strand of  chemically-resistant organic fibres (2) and a circumferential outer layer consisting of 10-20 thin electrically conductive metal wires (4), the thin electrically conductive metal wires (4) being twisted around the inner strand along the longitudinal axis of the yarn (1), whereby a void is formed between the inner strand and the outer layer by removal of material using a solvent.

All documents are in time and need to be considered. The 54(3) document A6 missed two features (no void, and the wires where the wrong way around). So that one is unlikely. A2 discloses a yarn but misses the void. A3 only discloses metal yarn, so seems even worse. A4 misses a couple of features, e.g., the materials of both the inner and outer strands, and the number of conductive strands. A4 also misses all of the purpose features (high stress, a ball). Seems A4 is a typical D2, but one could keep it on the shortlist if nothing better comes along. 

A5 seems to have everything then, except for the feature 'removal of material using a solvent.' A5 does remove an intermediate layer but uses a thermal method. This feature is a product by process feature, so one needs to ask yourself if novelty is imparted through it--can you tell the difference in the end product without having seen the manufacturing?

This one, unfortunately, led to a split jury here, with some of us arguing one way and some the other.  

One could argue that Claim 1 is novel over A5. That, you can tell the difference, and so the feature does impart novelty. The argument would be that A5 explains that the thermal treatment is not so great, as it leaves material behind, leading to a non-constant void. A1 explains that chemical removal is a more precise method leading to well-defined and constant dimensions. These are things you can see in the final product. In fact, A1 spends two paragraphs on explaining why chemical removal is better. Also A4 seems to imply that chemicals remove all of the intermediate layer. 

On the other hand, one could argue that Claim 1 lacks novelty over A5.  The argument might be, that A4 explains that one particular chemical is great at is leaves no residue of the polyamide at all. From this one could derive a contrario, that other chemicals  apparently do  leave some residue behind. Is that residue of constant width or not? A4 doesn't say. Moreover,  A5 uses the word 'may' to indicate the problems with thermal treatment. Maybe, sometimes, you get a great result with thermal treatment. But if thermal is mostly bad, but sometimes good, and chemicals are mostly good but sometimes not, can you still tell the difference? Maybe not, and this would lead to a novelty attack based on A5.

If you go for Claim 1 being novel over A5, then A5 would make a good closest prior art. 

Once one opts for an inventive step attack, the D2 document can only be A4. A weakness in the inventive step attack is that A1 explains that a constant void is good for mechanical resistance (otherwise you 'rupture even under low mechanical stress conditions'). But A4 does not mention this effect at all. So, here we get the missing feature from A4, and we don't exploit the product by process part. 

Final attack is Novelty A5 or Inventive step A5 + A4.

Claim 2

2. Method for producing the hybrid yarn (1) according to claim 1, comprising the
steps of
a. providing an intermediate layer of polyamide fibres (3) around the inner strand
of chemically-resistant organic fibres (2),
b. twisting the thin electrically conductive metal wires (4) around the intermediate
layer of polyamide fibres,
c. chemically removing the polyamide fibres (3) by a treatment with a solvent
consisting of 40-60 wt% of trifluoroacetic acid in acetone to provide a void
between the inner strand and the thin metal wires.

We need to consider if we have a closest prior art change. Perhaps we need to switch from A5 to A4? But A4 still misses the materials of the inner and outer layers, and the electrically conductivity. Still no purpose features, although these are now perhaps less important as we are not formally dependent on claim 1. None of these seem to be of sufficient importance to tip the scales though. It seems we can stay with A5 as closest prior art. If we do, we get the difference feature of claim 1, but also the particular solvent. Fortunately, both the solvent and range are anticipated by A4. A1 mentions as an additional effect that trifluoroacetic acid is a good cost compromise. A4 does not mention costs, so we fudge this a bit, perhaps cost is not really technical, or implicit, or inherent, pick one. Final attack is A5 + A4. When drafting the attack, you may have to a good chunk of the novelty analysis again, to make sure every nitty-gritty bit is disclosed. 

Part 2

Claim 3: added matter
Claim 3 was introduced during examination, and should therefore have support from the application as filed.
Claim 3 as filed, corresponds to claims 3 and 4 as granted, includes all features of granted claim 3, but also include the features of present claim 4, in particular to use 'antenna yarn', ie., a hybrid yarn consisting of organic fibres (2) and thin metal wires (4). Antenna yarn is essntial. Only through such a
yarn is a stable three-dimensional configuration of the antenna is guaranteed. Moreover, the yarn facilitates stability and ensures a long lifetime. Without the yarn, the effect of the invention is lost. [19].
Thus claim 3 cannot be based on claim 3 as filed.

In addition to the Art.123(2) attack, also two auxiliary novelty attacks were possible.

A first novelty attack over the first model Vuwuseeler introduced in 2010, citing A3 as evidence. If you did not do this attack for claim 3, you would need a lot of this anyhow for the attack on dependent claim 4.

A second novelty attack over A6 (Art.54(3) document). If you did not do this attack for claim 3, you would need this attack anyhow for the dependent claim 4.

Claim 4(3) is not novel over A6 and Claim 4 is not inventive over The first Vuvuseela ball (2010) (described in A3) and A2.

Claim 5. Inventive step: first Vuwuseeler ball + arrangement (as described in A3, page 2) + second Vuwuseeler arrangement (as described in A3, page 3) + A2.

Claim 6 Basically the same attack as for claim 5. A3 does not disclose a computer-implemented method for adapting the odds in live sports betting. The latter feature is not technical, and thus does not contribute to inventive step. Accordingly, claim 6 is not inventive for the same reasons as claim 5.

It is noted in passing that the application of the goal detecting arrangement to odds computing would in any case be not inventive, as betting on goals is well known and a commercial issue, as evidenced by the final remarks in the interview of A3 about ''odds for sports betting"