by Daniel X. Thomas
Brief outline of the case
The proprietor filed an appeal against the opposition division’s decision to revoke European patent 1 671 536 having the title “Double-type kalanchoe interspecific hybrids”.
The opposition division held that the ground for opposition in Art 100(a), pertaining to Art 53(b) and R 28(2), was prejudicial to maintaining the patent as granted,
by Daniel X. Thomas
Today 29.04.2022 (after the first post on this topic) my attention has been brought up to a newly published decision T 317/20, itself quoting an older decision T 482/19.
T 482/19
The Board confirmed the decision of the opposition division that the main request (patent as granted) does not comply with Art 123 (2)
AR 1,
by Daniel X. Thomas
The question at stake is the following: do new requests in which claims present in previous requests have been deleted represent an amendment to the party’s case or not?
In other words do the provisions of Art 13 RPBA20 and especially Art 13(2) RPBA20 apply when requests are late filed in appeal?
Position 1 requests with deleted claims do not represent an amendment
Some boards have taken the position that the deletion of method claims,
by Daniel X. Thomas
Brief outline of the case
The patent relates to a handle portion of a hand-held electric tool, whereby the battery pack has a triangular cross-sectional configuration.
Dependent claim 2 as granted was dependent on claim 1 as granted and claim 3 on claim 2.
During OP before the Board,
by Daniel X. Thomas
The patent was maintained in amended form according to AR3.
The patent proprietors and the opponent appealed this decision. The proprietors withdrew their appeal in the course of the appeal proceedings. The patent was maintained as decided by the OD.
A “Notice of appeal” was filed on behalf of the opponent Insys Therapeutics,