14 Feb 2017

T 0327/15 - Procedural violation

Key points
  • Decision from the stock
  • " The ground for opposition according to Article 100(b) EPC was never withdrawn by the appellant (opponent). [] The Opposition Division, however, did not deal with that ground in the reasons for the decision. It follows that the lack of reasoning concerning the ground for opposition according to Article 100(b) EPC in the impugned decision is in breach of Rule 111(2) EPC and Article 113(1) EPC. This constitutes a substantial procedural violation." 

EPO T 0327/15 - link

Reasons for the Decision
1. The appeal is admissible.
2. The invention relates to a haemodialyser used in a haemodialysis system for performing a haemodialysis treatment on a patient who has lost his kidney function.
A haemodialyser is the component in which the extraction of waste products from the blood of the patient undergoing the treatment takes place. Typically, it comprises two compartments separated by a dialysis membrane: a blood-side compartment to be filled by the blood of the patient circulating in the system and a dialysate-side compartment. During treatment waste products will diffuse through the dialysis membrane from the blood-side compartment into the dialysate-side compartment, and some dialysate will diffuse in the opposite direction, to achieve an electrolyte balance in the treated blood. The treated blood is then re-infused into the patient.


The invention focuses on the provision of a particular hollow fibre membrane bundle as the dialysis membrane.
3. The patent was opposed, inter alia, on the ground according to Article 100(b) EPC. More particularly, under item VIII of the notice of opposition, the appellant objected to claim 13 of the patent as granted and submitted that the patent specification did not contain any information on how the defined urea mass transfer coefficient of the haemodialyser could be obtained. It followed that the subject-matter of claim 13 was not disclosed in a manner sufficiently clear for it to be carried out by a person skilled in the art.
The ground for opposition according to Article 100(b) EPC was never withdrawn by the appellant. As can be seen from the impugned decision (point 7) and the minutes of the oral proceedings before the department of first instance (forth and third sentences from the end), this ground was even addressed during the oral proceedings, with the parties referring to their preceding written submissions without presenting any further arguments.
The Opposition Division, however, did not deal with that ground in the reasons for the decision. As also pointed out by the appellant, it is only in the communication accompanying the summons to oral proceedings that the Opposition Division briefly addressed it (point 9.1), and even in that communication merely a "preliminary and non-binding opinion" without any detailed reasoning was provided:
"Concerning lack of insufficient disclosure of claim 13 which is based on the allegation that a skilled person is not enabled to provide the hemodialyzer of claims 1 to 12 having an overall mass transfer coefficient as defined in claim 13 the Opposition Division at present shares the view of the Patentee that the Opponent did not submit any evidence for its allegation."
4. Under Rule 111(2) EPC, "decisions of the European Patent Office which are open to appeal shall be reasoned".
The reasons should make it possible for the adversely affected party to consider whether it may be worth filing an appeal with a reasonable expectation of success, and for the Board to establish whether the decision was justified or should be set aside. The reasons also serve the purpose of showing that arguments of the adversely affected party have been duly considered by the deciding body, having regard to the right to be heard enshrined in Article 113(1) EPC.
It follows that the lack of reasoning concerning the ground for opposition according to Article 100(b) EPC in the impugned decision is in breach of Rule 111(2) EPC and Article 113(1) EPC. This constitutes a substantial procedural violation.
5. Under Article 11 RPBA the Board should remit the case to the Opposition Division "if fundamental deficiencies are apparent in the first instance proceedings, unless special reasons present themselves for doing otherwise".
Given the substantial procedural violation established above and the fact that no special reasons against a remittal arise, the Board concludes that the case should be remitted to the Opposition Division for further prosecution.
6. According to Rule 103(1)(a) EPC, the appeal fee is to be reimbursed in full when the Board "deems an appeal to be allowable, if such reimbursement is equitable by reason of a substantial procedural violation".
As concluded above, the case should be remitted to the Opposition Division. It follows that the impugned decision is to be set aside. Hence, the appeal is allowable.
As explained above, the lack of reasoning concerning the ground for opposition under Article 100(b) EPC constitutes a substantial procedural violation.
Furthermore, the Board notes that if the ground for opposition under Article 100(b) EPC was found to prejudice the maintenance of the European patent, the opposition would be successful irrespective of the conclusions reached for other grounds.
Therefore, the Board considers it equitable to order the reimbursement of the appeal fee under Rule 103(1)(a) EPC.
7. Under these circumstances, all other requests submitted by the parties in the appeal proceedings, in particular in relation to the admissibility of new evidence, are left for the Opposition Division to decide upon.
Order

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