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The proprietor appealed the decision to revoke its patent.

Brief outline of the situation

The MR filed in opposition and maintained in appeal, now AR 1, contained claims 1 and 6 as independent claims.

In the new MR, claim 1 and its dependent claims 2 to 6 as well as claims 11 and 12 have been deleted.

The patent was maintained in amended form by the OD. The proprietor appealed the decision.

For the OD, claim 1 as granted lacked inventive step over specific documents submitted by the opponent.

The proprietor claimed that his right to be heard has been violated on two occurrences:

– he could not dispute the common general knowledge used by the opposition division;

The whole discussion in the case turned around the question whether there was a lack of definition of the essential parameter d90 (particle size distribution of 90% of the particles) as the skilled person did not know whether the parameter d90 referred to 90% of the particles by volume, by number, by weight or by surface area.

Following T 1989/18 according to which the description does not have to be adapted, T 1444/20 approves T 1989/18 and also quotes R 42(1,c)  and R 48(1,c).  

The decision of the ED

In the communication under R 71(3) the applicant was informed that the division intended to grant a patent whereby pages 29 to 41 of the description were to be deleted.

AR 1 to 4 and 6 to 8 were submitted with letter dated 07.11.2019 replacing AR 1 to 4 and 6 to 8 filed with the reply to the statement setting out the grounds for appeal of the opponent.

The proprietor put forward, in relation to these AR, that the filing was prompted by an obvious error by mistakenly including certain features in claim 3 of its previous AR 1 to 4 and 6 to 8 of 17 July 2019 and,