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The opponent appealed the decision to maintain the patent according to a MR filed during the opposition procedure.

Contrary to the OD, the board decided that claim 1 of the MR (as maintained) lacked IS.

Admissibility of AR 6

The filing of AR 6 with the reply to the grounds of appeal,

The proprietor appealed the OD’s decision to revoke EP. 2 880 138.

The choice of the CPA

The patent (see paragraph [0014]) seeks to provide a lubricating oil composition for internal combustion engines which not only affords good wear resistance and fuel economy but also exhibits good emulsion stability.

If the lubricating oil composition has high emulsion stability,

The patent was revoked as the OD held that the patent as granted as well as according to the AR1-3 did not meet the requirements of Art 123(2).

The proprietor requested inter alia that the decision under appeal be set aside and the patent be maintained in amended form on the basis of the MR or any of the AR 1 to 4 as filed with the statement of grounds of appeal in that order.

The patent was maintained by the OD on the basis of a request filed during OP. Both proprietor and opponent appealed the decision.

It was in dispute whether an objection of lack of IS about claim 8 of the MR in view of NPL5 and E14 was admissible or not.

The opponent considered it was admissible,

The opposition to EP 2 632 399 was rejected by the OD.

In appeal the BA held that claim 1 as granted as well as AR  1, 3, 3a, 4, 5, 6 were lacking N over D19=US-B-6588428 (not in ISR) or D18=US-A-4143656 (not in ISR). The ISR contained only two A documents.

The proprietor informed the Board that it would not be attending OP shortly before the scheduled date.