CASELAW-EPO - reviews of EPO Boards of Appeal decisions

The present decision is interesting for two aspects:

• Holding OP in the form of a ViCo in the future and discretion given to the BA in Art 15a(1) RPBA20.
• Common general knowledge without any evidence but the personal knowledge of members of the BA.

OP by ViCo

In view of the pandemic developments and the resulting high incidences in Bavaria at the relevant time (21.03.2022),

T 527/17 shows what appears reasonable and advisable in matters of deletion of claims.

In T 527/17 the board admitted the main and the second request but not the first auxiliary request.

Both the main and the second request result from the deletion of claims 7 to 9 (main request) and 6 to 9 (second auxiliary request) from auxiliary request 9A filed with the statement of grounds of appeal

The board held that these amendments do not change the patent proprietor’s case as put forward in its statement of grounds of appeal: they do not raise any new issue and stay within the legal and factual framework established at the outset of the appeal proceedings for the claims remaining on file.

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,

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,

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,