EP 2 592 134 B1 relates to “Sustainable cleaning agents and detergents”.
Brief outline of the case
All requests on file before the OD were infringing Art 123(2). The OD revoked the patent.
The board confirmed the revocation for added matter for all request on file.
Some of the proprietor’s requests are rather surprising
The proprietor’s requests
The proprietor further requested that “the opposition be dismissed on the grounds of abuse, inter alia on the basis of misleading conduct and obstruction of the patent proprietor in breach of procedural rules”.
With regard to this request, it asked at the OP that the board orders a different apportionment of costs to be borne by the respondent.
For the proprietor, the opponent had engaged in procedural tactics amounting to an abuse of procedure shortly before the OP before the OP.
In the proprietor’s view, the opponent filed a written submission containing ten new pieces of evidence (D309 to D318) five days before the OP. In particular, by submitting evidence D314, it had, for tactical reasons, waited until the end of the working week prior to the OP, even though D314 had already been drawn up four days before its submission. The opponent also submitted two further written submissions on. Respectively, two days and one day, before the OP.
The argument put forward by the opponent, namely that D314, in particular, constitutes a response to the evidence (D308) submitted by the proprietor, is incorrect. By submitting D308, the proprietor merely CGK.
With D314, the opponent departed from its previous position and from the existing consensus amongst all parties to the proceedings just five days before the OP. It constitutes an abuse of procedure if a party takes a clear position on a particular issue and subsequently departs from it without giving reasons. The proprietor referred to Headnote 2 of the decision T 446/00.
Even more serious is the fact that the opponent submitted D314, which contains a falsified signature. The signature in D314 is, in fact, a forgery. In the proprietor’s view, this fact is corroborated by further evidence submitted during the appeal proceedings.
These circumstances would indicate a deliberate attempt to mislead the other parties to the proceedings and the OD. In particular, the OP before the OD was thereby compromised and the principles of a fair hearing were infringed. This justifies the “dismissal” of the opposition and an order for costs against the opponent. In the alternative, at the very least, opponent’s last three written submissions, as well as the evidence D309 to D318, should not be admitted.
The board’s decision
The board was not aware of any legal basis, nor has the proprietor cited any, on the basis of which an opposition could be “dismissed”, i.e. rejected, where the OD had deemed it admissible and had ruled on the merits of the case. For this reason alone, and without addressing the question of whether there was in fact an abuse of procedure or not, the proprietor’s request for the opposition to be “dismissed” cannot succeed.
The request for a different apportionment of costs cannot be granted, as it is based on events that took place during the opposition proceedings, and no request for a different apportionment of costs was made during those proceedings. Consequently, there is no decision by the OD on such a request that could form the subject matter of the appeal.
With regard to the request concerning opponent’s last three written submissions, as well as the evidence D309 to D318, the board notes that neither the aforementioned written submissions nor the evidence D309 to D318 were relevant to the present decision. A decision by the board on the proprietor’s request for non-admission is therefore not required.
The board further noted that the case underlying decision T 446/00, does not concern the possible dismissal of an opposition on the grounds of abuse of procedure, but rather the late filing of new sets of claims by the proprietor, whereas those sets of claims contained a product claim 11 which was not present in any of the requests filed with the grounds of appeal.
The facts of that case are therefore entirely different from those of the present case, meaning that decision T 446/00 is irrelevant to the present case.
Comments
The proprietor’s attitude in this procedure might be explained by the fact that the later opponent had already filed during examination third party observations, inter alia reminding the ED of R 137(3) and raising objections under Art 84 and Art 123(2).
This culminated with a request of the third party to stay the proceedings under Art 61(1). Due the 5 TPOs during examination, and the request under Art 61(1), which was dismissed by the Swiss Federal Court, delayed proceedings. Filing date 12.12.2011, decision to grant 07.10.2022.
Whilst the proprietor hired a professional representative in examination and in opposition, the CEO of the company represented the proprietor in appeal. This also explains the rather emotional requests from the proprietor in appeal.
The attitude of the TPO and later opponent is also not free of emotions. Retarding the grant and then claiming the opposition to then requesting a transfer of property, can also be considered odd.
In the end, the patent has gone for all parties, but I dare imagine the costs involved for this procedure for all parties. I thought patents were technical items which should be looked at in a purely technical and economical way, free of emotions.
Comments
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