R 16/13 [B]- successful petition for review
T0908/10 - sufficiency of second medical use claim - " The relevant question to be addressed in the context of Article 83 EPC is whether or not the patent in suit provides enough guidance for the skilled person to manufacture fusion proteins which also show the claimed therapeutic effect without undue burden or rather whether the skilled person is faced with a research program for which no guidance is forthcoming."
T 1972/10 - whole does not provide basis for part - opposition against divisional with filing date 16.12.1994 (filed 14.07.2003, intention to grant 01.12.2005, legal decision 7.12.2007 (J18/06) mention of the grant 26.03.2008), so the present decision well after expiry patent term. Patent revoked as it extend beyond the content of the grandparent. Claim 1 is directed to " the medical use of the neurotoxic component of Botulinum toxin, where the use is the treatment of a spastic muscle by intramuscular injection". Grandparent disclosed use of the whole toxin, not of the neurotoxic component.
It remains to be examined whether the implicitly disclosed interval "from 85 to 92" (!) could still provide a basis for the range "from greater than 85 to 95". This could be the case if the term "greater than 85" did not add any technical information going beyond that of the term "85".
According to the appellant (see point 6.6. above), the feature "greater than 85" was required in claim 1 in order to exclude the otherwise overlapping point "85". Thus, the feature "greater than 85", which excludes the overlapping point "85", must necessarily be different from "85", which includes it. It must therefore be concluded that the feature "greater than 85" represents additional technical information (T 985/06, Reasons 2.1), and cannot be considered implicitly disclosed by the value "85".
The lower amount of polymerised VDF of "greater than 85" required by claim 1 thus does not find a basis in the application as originally filed, with the consequence that the ground under Article 100(c) EPC precludes the maintenance of the patent as granted."
Decisions with publication date 29.05
T 2046/11 - could have been filed in first instance - Examination appeal. Auxiliary request not admitted under Article 13(1) RPBA. . "Further, the board cannot see any reason why the applicant would not have been in a position to present before the first instance a claim which included the above feature. The introduction of this feature in an independent claim for the first time in appeal proceedings means that the examining division was not given the possibility to give a final decision on the merits of this feature. The board would therefore be compelled to either give a first ruling on this issue, which would run contrary to the purpose of a second-instance proceedings, or remit the case to the first instance, which would clearly be contrary to procedural economy." Hence, even if you want a decision of the Board on the main request, you must present the auxiliary request before the ED.
T 0335/11 - mind willing to understand - In the context of novelty, the Board notes that "according to general principles of claim interpretation, see Case Law of the Boards of Appeal, 7th edition 2013, II. A.6.1 the skilled person reads a claim with a mind willing to understand, giving the various terms their normal meaning and reading them contextually."
T 2046/11 - could have been filed in first instance - Examination appeal. Auxiliary request not admitted under Article 13(1) RPBA. . "Further, the board cannot see any reason why the applicant would not have been in a position to present before the first instance a claim which included the above feature. The introduction of this feature in an independent claim for the first time in appeal proceedings means that the examining division was not given the possibility to give a final decision on the merits of this feature. The board would therefore be compelled to either give a first ruling on this issue, which would run contrary to the purpose of a second-instance proceedings, or remit the case to the first instance, which would clearly be contrary to procedural economy." Hence, even if you want a decision of the Board on the main request, you must present the auxiliary request before the ED.
T 0335/11 - mind willing to understand - In the context of novelty, the Board notes that "according to general principles of claim interpretation, see Case Law of the Boards of Appeal, 7th edition 2013, II. A.6.1 the skilled person reads a claim with a mind willing to understand, giving the various terms their normal meaning and reading them contextually."
T 0160/13 - formal requirements transfer priority - formal requirements for transfer of priority right based were to assessed under German law (no reasons given, German utility model as priority founding application. Exchange of email sufficient.
T 0715/14 - Rule 140 correction of decision - Examination appeal. Refusal decision was corrected under Rule 140 after expiry appeal period and filing of the Statement of grounds - allowed.
No comments:
Post a Comment
Do not use hyperlinks in comment text or user name. Comments are welcome, even though they are strictly moderated (no politics). Moderation can take some time.