T 2188/22 - Renumbering requests during the OP OD

Key points

• The proprietor renumbered auxiliary request during the OP before the OD: "auxiliary requests 18 to 33 filed during the oral proceedings were identical to auxiliary requests 2 to 17 filed during the written proceedings"
• Hence, new requests 2-17 were inserted during the oral proceedings after the OD concluded that claim 1 was not new over D4.
• "The opposition division decided not to admit auxiliary request 2 into the proceedings. Thereafter the appellant stated that it wished to revert to the auxiliary requests submitted in the written procedure (cf. minutes, page 6, para 4). After the parties were heard on the issue of novelty of the subject-matter of claim 1 of auxiliary request 2 filed on 21 June 2021 the opposition division concluded that auxiliary request 2 lacked novelty. Thereafter the Chairman informed the parties that no further request would be admitted and announced the opposition division's decision revoking the patent"
• The Board: "With regard to the Chairman's statement that only one further request may be filed, it should be noted that it is up to the parties to define their requests. In principle the opposition division cannot prevent the filing of requests, but can only decide on their admittance after having heard the parties on that issue."
• "it should be noted that the appellant had not withdrawn its auxiliary requests 2 to 17 filed in the written procedure. By submitting auxiliary requests 2 to 34 at the oral proceedings, the appellant obviously only pursued the goal of ranking the previous auxiliary requests after the newly submitted auxiliary requests. This follows from the fact that auxiliary requests 18 to 33 submitted at the oral proceedings corresponded to the auxiliary requests 2 to 17 submitted in the written procedure. The fact that the appellant subsequently stated that it wished to revert to its original requests merely meant that it did not wish to pursue the auxiliary requests 2 to 17 newly filed during the oral proceedings. Since the parties were neither heard on the question of admissibility of auxiliary requests 3 to 17 (filed in the written proceedings), nor was the content of those auxiliary requests discussed, the appellant's right to be heard was violated (Article 113(1) EPC). "
• "The fact that the auxiliary requests filed in the written proceedings were renumbered during the oral proceedings before the opposition division does not mean that these requests are to be regarded as "new" requests as stated under point 6 of the impugned decision. "
• "it should be noted that the renumbering of the auxiliary requests which took place during the oral proceedings before the opposition division is not a sufficient reason for disregarding those requests in the proceedings."
• The Board: "The [proprietor] did not file an unreasonable number of requests, nor can the [proprietor's] conduct be considered abusive" because "the higher ranking requests additionally filed in the oral proceedings (i.e. auxiliary requests 2 to 17 then on file) were withdrawn immediately after the opposition division had decided not to admit the newly filed auxiliary request 2. Thus, in fact, the substance of any further request had not been discussed before the appellant decided to revert to its original requests".
• As a comment, the position of the opponent who had to prepare for 17 newly filed auxiliary requests during the hearing should also be considered. Forcing the opponent to prepare for a large number of requests only to withdraw them during the same oral proceedings can be an abuse of procedure in my view, depending on the circumstance (i.e. I'm not saying that it was abusive in the present procedure). 
• 
  

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the decision text.

T 0813/20 - A case amendment under Art.12(4) ?

Key points

• The OD maintains the patent in amended form based on AR-II (identical to AR-2 in appeal). Both parties appeal.
• "The statement of grounds of appeal of the opponent contains an objection of lack of inventive step based on D11 as closest prior art against claim 1 of auxiliary request II underlying the contested decision.
• That objection was maintained in the rejoinder of the opponent (section 4.4, item 42), as the present second auxiliary request corresponds to said auxiliary request II. An objection based on D11 as closest prior art was also raised in the rejoinder of the opponent against the main request, the first auxiliary request, and the third auxiliary request in appeal (rejoinder of the opponent, sections 4.3 and 4.5, item 53). 
• The objection against the main request [i.e. lack of inventive step over D11], which corresponds to the patent as granted, is to be regarded as an amendment to the opponent's case within the meaning of Article 12(4) RPBA 2020. Its admittance is at the discretion of the Board."
• The OD had held the claims as granted to lack basis in the application as filed, Art. 123(2).
• The OD also found that AR-2 was inventive over D11 as the closest prior art. As the Board notes: " It is also immediately apparent that the objection of lack of inventive step over D11 submitted against claim 1 of the second auxiliary request is also relevant for the main request whose claim 1 is more broadly defined"
• It is  not clear to me how the inventive step attack from D11 can then be a case amendment. More precisely, how it can be a "part of appeal case not meeting the requirements of Art.12(2)", i.e. not directed to the ... objections ... on which the impugned decision was based. If the inventive step attack against AR-2 is valid, then it must apply equally to the main request, which must be broader (claims as granted).
• At any rate, the Board considers the "unless clause" of Art. 12(4) to apply, such that following the wording of Art.12(4), the attack is "not to be regarded as an amendment".
• The unless clause applies because, even though the attack was "first raised towards the end of the oral proceedings before the opposition division", "it is however apparent from the minutes that the admittance of the objection was discussed between the parties at the oral proceedings proceedings, after which the opposition division admitted the objection into the proceedings. The parties provided their arguments relating to that objection and the impugned decision is based on that objection " (indeed in view of AR-II)
• " Under Article 12(1)(a) RPBA 2020, any such facts, having become part of the contested decision, are basically part of the appeal proceedings too"
• Under the one-way interpretation of G7/93, r.2.6, this is the case.
• "In addition, that amendment of the opponent's case does not add complexity or goes against procedural economy. "
• As the Board had already concluded that it had no discretion to hold the attack inadmissible under Art. 12(4) and established case law, this added remark is puzzling. 

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

R 0013/22 - Patent revoked, opponent unhappy & diagnostic method

Key points

• The opponent was "European Society of Human Reproduction & Embryology". The title of the patent is "IMAGING AND EVALUATING EMBRYOS, OOCYTES, AND STEM CELLS." 
• The OD has ex officio raised an objection based on Art.53(a) with R.28(c) EPC regarding the commercial use of human embryos.
• In the decision, the OD found that the ground of Art.53(a) did not apply because there is a distinction in the EU biotech directive between inventions for diagnostic purposes applied to human embryos and useful to it, the latter not excluded from patentability.
• O2 raised an objection regarding Art.53(c), diagnostic methods.
• The OD found the claim to be allowable under Art.53(c) because the "third step"  of G 1/04, of diagnosis stricto sensu is not recited in the claim (this is the step that is a " purely intellectual exercise" according to G 1/04, but if you omit it from the claim, there is no objection under the diagnostic method prong of Art.53(c).
• Hence, the OD concluded the claim is allowable under Art.53(a) because it is a diagnostic method and, at the same time, found that it is not a diagnostic method and therefore allowable under Art.53(c). I refrain from comments on this point. 
• Claim 1 as granted is directed to:  "A method for assessing good or poor developmental competence of a human embryo". I have not studied what the patent suggests doing in case of poor developmental competence (potential in the application as filed) of an embryo, though the embryo appears to be in vitro when it is subjected to the measurements. 
• The proprietor disapproves the text of the patent shortly before the hearing in appeal. There was no preliminary opinion of the Board on the issue of Art.53.
• The opponent/appellant expressly requests oral proceedings and a decision on the issue of Art.53
• The Board revokes the patent under Art.113(2)  without giving reasons on Art.53.
• The opponent files a petition for review.
• The Enlarged Board: "The Enlarged Board is thus of the view that the non-holding of the oral proceedings, the non-consideration of the Article 53 EPC objection, and the non-referral of questions to the Enlarged Board of Appeal cannot be considered to have resulted in any prejudice to the Petitioner that would lead to the Petitioner being adversely affected by the decision to revoke the patent within the meaning of Article 112a(1) EPC." 
• " For a board to refer questions to the Enlarged Board of Appeal under Article 112a EPC certain conditions need to be fulfilled. Amongst these conditions is that the referral questions must not have merely theoretical significance. An example of such theoretical questions would be if the board could reach the same decision regardless of the answer (see G 3/98, para 1, and T 547/08, para 4, last para). Some further conditions are that the questions must be relevant for deciding the case in question (see T 2136/16, para 8.1 to 8.3); and that the answer to the referred questions must be essential for the board to reach a decision on the appeal in question (see T 154/04, para 2). None of these conditions apply in the present case. The Board was able to revoke the patent without needing an answer to the referral questions submitted by the Petitioner."
• As a comment, should proprietors withdraw all claim requests that the Boards consider unallowable if such withdrawal is procedurally possible at the end of oral proceedings (and if a petition for reviews is not considered) to avoid the creation of unfavourable case law?

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 2285/19 - Interlocutory revision

Key points

• The applicant appeals against the refusal of the patent application. The Board concludes that: " the amendments to the claims of the main request clearly overcome the sole objection raised by the examining division against claims 1 and 6 of auxiliary request 2 on which the decision under appeal was based." 
• The Board concludes that the ED should have granted interlocutory revision: "An appeal is to be considered well founded within the meaning of Article 109(1) EPC if the main request submitted with the appeal includes amendments which clearly overcome the objections on which the decision relies, such that the examining division could reasonably be expected to recognise this and thus rectify its decision. Other objections which may arise in the main request but which were not the subject of the contested decision cannot preclude the application of Article 109(1) EPC". 
• Note that admissibility under Art.12 RPBA is not mentioned as a factor for Art.109 EPC. See T 0682/22.
• "  In view of the board's findings in point 2. above, the examining division could reasonably have been expected to recognise that the amendments made to the claims of the current main request overcame the sole ground for refusing then auxiliary request 2, and should have rectified its decision." 
• The Board does not conclude that this is a substantial procedural violation. This conclusion aligns with T 1060/13 and T 0682/22. 
• The Board remits the case and refunds the appeal fee at 25% because the request for oral proceedings was withdrawn in time (the withdrawal was conditional on the remittal). 

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 0921/21 - Two lines of case law about Rule 116

Key points

• The decision was issued on 16.08.2023 and is already discussed elsewhere. 
• The opponent filed new documents by the Rule 116 date before the OD. The proprietor filed new claim requests in reply before the oral proceedings. The OD did not admit them. The Board has to review under Art. 12(6) RPBA.
• The Board in adjusted machine translation: " In the jurisprudence of the Boards of Appeal, there are different approaches to assessing the admissibility of claim requests, filed under Rule 116(1), sentence 4, and  (2) EPC in response to a [case amendment of the opponent]."
• "According to one view, a new application prompted by new submissions is considered timely at least if it was submitted at the earliest possible point in the procedure (see ... T 754/16, reasons for the decision 1.3.1; T 487/13, reasons 6.2; see also T 688/16, Reasons 2, according to which the discretion is conditioned by a communication of the reasons opposing maintenance). This earliest possible point in time is determined based on evaluative criteria. According to this legal opinion, the opposition division would not have had any discretion not to admit the applications".
• "According to another view, it should always be possible to hold inadmissible any new submissions if a time limit has not been met (Article 114(2) EPC). This should apply, in particular, to sets of claims filed after the deadline set in Rule 116(1) EPC (T 1776/18, [from 2023] reasons 4.6). According to this view, the assessment is not limited to checking whether the submission was made at the earliest possible point in time, but criteria evaluating the content, such as prima facie allowability, can also be taken into account (T 966/17, reasons 2; T 1776/ 18, reasons for the decision 4.6)."
• However, in this case, the OD had based its decision on the argument that "there were reasons to assume that the patent owner did not only take note of the opponent's written submission when it was transmitted by the Office on January 20, 2021, but rather before Christmas. "
• The Board: "this consideration represents an inadmissible discretionary criterion because it is speculative and was disputed by the [appellant/proprietor]. Rather, what is relevant is when the written statement was served on the patent holder. However, notification [to the proprietor] was only arranged four weeks after documents D5 to D9 were received [by the EPO]. When it would have been possible to view this in the register* is irrelevant and also not proven. Thus, by taking into account an inadmissible criterion, the opposition division has (at least also) come to its conclusion that the applications were filed so exceptionally late that a departure from the normally applicable principle of admitting applications that were filed late by the opposing side was justified facts were submitted."
• * - as a comment, documents are visible in the online file, not in the Register.
• "the fact that the department partly based its discretion on the correct criteria does not change the fact that an inadmissible criterion was also taken into account"
• The request is admitted.
• The request is also held allowable.

EPO 

The link to the decision is provided after the jump.

T 1996/20 - A blog post as prior art

Key points

• In what has a distinct EQE Paper C vibe: "Document D4 is a disclosure made available on the internet in the form of a blog entry published at a certain date followed by a series of user comments posted at a later point in time. In the present case, the board has no doubt that the content of the blog entry dated 15 June 2013 ("2013 06/15") as well as the first three comments on page 6/7 of 16 June 2013 and 10 October 2013 were made available to the public before the priority date of the patent in suit, i.e. before 29 January 2014. With the exclusion of the last five comments of pages 6/7 and 7/7, posted between 3 December 2014 and 16 March 2016, document D4 therefore constitutes prior art under Article 54(2) EPC." 
• " D4 - "Lexan: The 3D-Printer build platform of the future", dated between 15 June 2013 and 16 March 2016, retrieved from the internet (http://www.akeric.com/blog/?p=2158);|" 
• The claim is found to be obvious over the blog post in combination with a patent document D5, it seems with the teaching of a single paragraph of D5 and some dependent claims. 
• "  In the board's view, the skilled person would not have ignored this clear and unambiguous teaching in document D5. This explicit solution to the objective technical problem would have prompted the skilled person to modify the substrate, i.e. the flexible Lexan sheet, of document D4 by texturing its top surface. In so doing, the skilled person would have arrived at the subject-matter of claim 1 of the patent as granted. Hence, the claimed subject-matter is obvious." 
• 
  
• The rest of the decision is also interesting, including a discussion of the permitted role of post-published documents under inventive step as evidence of common general knowledge, technical prejudice, "one of many feasible solutions"  and long-felt need. 
• " The appellant's submissions concerning the "dominant thinking" and the "prejudice" at the time of filing seem to miss the point that document D4, the starting point for the inventive step assessment, already discloses an alternative to the Kapton tape, the blue painter's tape and the hairspray, namely a build plate consisting of a flat sheet of flexible material"
• " It may very well be that the textured top surface is just one of several different feasible solutions to the objective technical problem. But it is the only solution to the problem offered by document D5."
•   " The board does not dispute the appellant's argument that producers of 3D printers at the time the application for the patent in suit was filed relied on Kapton foil, blue painter's tape or hairspray. Documents D14 and D17 are proof thereof. However, this does not imply a long-felt need that was overcome by the claimed invention and that is therefore indicative of an inventive step." 
• 
  

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 1203/19 - Novelty of second medical use claims, and credibility of prior art

Key points

• The decision was taken on 26.04.2022 and was notified in writing on 18.07.2023. The minutes were forwarded on 06.05.2022. No communications under Art. 15(9) RPBA are visible in the (public) online file.
• A petition for review is pending.  
• 
  
• " claim 18, is directed to the therapeutic use of an oncolytic adenovirus"
• "Use of the oncolytic adenovirus comprising a sequence encoding a hyaluronidase enzyme inserted in its genome for the manufacture of a medicament for the treatment of a cancer or a pre-malignant state of cancer, in a mammal including a human."
• "If the claimed subject-matter pertains to a use in connection with a medical treatment, for the requirement of reproducibility to be regarded as fulfilled it is necessary that the disclosure in the prior art document is such as to make it credible that the therapeutic effect on which the method of treatment relies can be achieved (see decision T 1457/09 of 17 January 2014, point 36 of the Reasons which refers to decision T 609/02 of 27 October 2004, point 9 of the Reasons). The therapeutic application of the present patent is based on the finding that the expression of a sequence encoding a hyaluronidase enzyme inserted in the genome of an oncolytic adenovirus improves the distribution of the virus through the tumour mass, increases its antitumour efficacy and induces tumour regression (see paragraphs [0017] and [0060] to [0064] and Figures 7 to 9 of the patent)."
• "Document (13) [WO 2005/018332]  does not include any experimental results whatsoever showing expression of the hyaluronidase sequence in tumour cells infected with the described adenovirus, either in vitro or in vivo, nor improved distribution of the described genetically engineered adenovirus within a tumour or tumour regression induced by administering the adenovirus. As a matter of fact, none of the examples of document (13) involves the use of an adenovirus, let alone an oncolytic adenovirus comprising a sequence which encodes a hyaluronase enzyme. Hence, document (13) itself does not provide anything of substance that makes it credible that the genetically engineered adenovirus described therein is in fact suitable for the treatment of cancer."
• "In the board's view, in the absence of relevant experimental data in the document which may support a therapeutic effect, the common general knowledge of the skilled person at the publication date of document (13) becomes highly relevant. Therefore, only if - in the light of this common general knowledge - it was credible that the genetically engineered adenovirus described in document (13), which comprises a sequence encoding a hyaluronidase, was suitable for treating cancer in a mammal, it can be concluded that the skilled person derives this technical teaching from document (13). The board considers that - in view of the common general knowledge set out below - the skilled person would have had serious doubts in this regard and that, therefore, this technical teaching cannot be seen as being derivable from document (13)"
• Regarding inventive step: "As stated above in connection with novelty, document (13) is not considered to be enabling for the use of the oncolytic adenovirus as defined in claim 1 for the treatment of cancer. If, as the respondent contended, the problem to be solved starting from this document were to provide an adequate treatment for cancer, the statements in document (8) (see page 12, last sentence of the second paragraph) would not suggest to the skilled person the use of an oncolytic adenovirus comprising a sequence which encodes a hyaluronidase, but rather the co-administration of an oncolytic adenovirus and hyaluronidase enzyme in the tumour."
• "It follows from the above that the subject-matter of claim 18 is not obvious to a person skilled in the art in view of document (13) combined with common general knowledge. Hence, inventive step is acknowledged."
• Hence, this second medical use claim appears [*] novel and inventive over a prior art document literally apparently disclosing the second medical use.
• [*] - It is not entirely clear to me what the relevant paragraphs of D13 are. The Board's decision does not seem to contain pin-point citations, as D13 is dismissed as not making certain statements credible. 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 1147/21 - Broad but clear claims

Key points

• Broad claims. I suppose they sometimes annoy Examiners who can't find novelty-destroying prior art quickly.
• The Board: "Claim 1 of the first auxiliary request meets the requirements of Article 84 EPC, as opposed to the examining division's conclusion. "
• "the features of claim 1 are perhaps broad, but they are technically sensible and clear for the skilled person."
  "Under established case law, complexity is not equivalent to a lack of clarity"
• "Moreover, a broad claim is not unclear per se []. However, while the scope of the claim is clear, its broadness could have an influence on the assessment of inventive step."
• "The measurement of the oxidised nitrogen concentration is not an essential feature. Instead of being measured, it could also be calculated. The frequency of the measurements is not an essential feature of the invention either. Nor did the examining division provide any evidence."
• "The measurement of the oxidised nitrogen concentration is not an essential feature. Instead of being measured, it could also be calculated. The frequency of the measurements is not an essential feature of the invention either. Nor did the examining division provide any evidence."
• The case is remitted. 

• EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://www.epo.org/en/boards-of-appeal/decisions/t211147eu1

First auxiliary request

The first auxiliary request is identical to that considered in the decision under appeal.

1. Amendments

Claim 1 is based on claims 11 and 15 as well as on the last five lines of paragraph [0004] as originally filed.

Therefore, this request meets the requirements of Article 123(2) EPC.

2. Clarity

Claim 1 of the first auxiliary request meets the requirements of Article 84 EPC, as opposed to the examining division's conclusion.

2.1 In the current case, the features of claim 1 are perhaps broad, but they are technically sensible and clear for the skilled person.

Under established case law, complexity is not equivalent to a lack of clarity (Case Law of the Boards of Appeal of the EPO, 10th edn., II.A.3.1).

Moreover, a broad claim is not unclear per se (Case Law of the Boards of Appeal of the EPO, 10th edn.,

II.A.3.3). However, while the scope of the claim is clear, its broadness could have an influence on the assessment of inventive step.

2.2 The measurement of the oxidised nitrogen concentration is not an essential feature. Instead of being measured, it could also be calculated.

The frequency of the measurements is not an essential feature of the invention either. Nor did the examining division provide any evidence.

2.3 The skilled person knows where and with what frequency the measurements are to be carried out. This belongs to the general knowledge of the skilled person in process engineering.

2.4 The fact that claim 1 allows for the adjustment of three possible variables (i.e. dissolved oxygen, duration of the aerobic period and/or duration of the anaerobic period) to control one of two controlled variables (i.e. the ratio or the sum) perhaps renders claim 1 complex but not unclear.

2.5 The board does not see a reason why the skilled person could not establish whether a given method allows to maintain an "ammonia concentration [...] higher than 1.5 mg/L as nitrogen for more than 75% of the transiently-aerated reactor volume in space or time".

In the current case, the risk of a conflict between the criteria of claim 1 evoked by the examining division is hypothetical and not sufficiently substantiated.

3. Sufficiency of disclosure

Several issues raised by the examining division and mentioned above under point 2. relate instead to the requirements of Article 83 EPC. However, the board sees no reason why the invention according to claim 1 could not be carried out be the skilled person.

The desired effects do not form part of the claim. Thus, Article 83 EPC does not presuppose that such effects are obtained.

It is sufficient that the skilled person change one or more of the three parameters to maintain the ratio or the sum. There is no doubt that they can do this.

Remittal to the examining division

4. Article 111(1) EPC

Article 11 RPBA 2020 stipulates that a case is only to be remitted to the department whose decision was appealed for further prosecution if there are special reasons.

The fact that the decision under appeal does not deal with Articles 54 and 56 EPC qualifies as such special reasons.

Order



For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the examining division for further prosecution on the basis of the first auxiliary request submitted with the statement setting out the grounds of appeal.

T 0016/20 - Published (?) Chilean patent application

Key points

• D1 is CL2007003341A1. So, what could go wrong with the evidence of the publication date?
• Turns out it is not an actual patent publication. Rather, on the alleged publication date (in April 2008), an abstract was published in the Bulletin. As I understand it, from that time the file of the application was available. However, the document filed by the opponent as D1, link, includes pages that are date-stamped in 2013 by the CL patent office. 
• The Board considers it proven that the pages date-stamped in 2007 were public and then goes on to analyse whether those (selected) pages provide an enabling disclosure. The Board concludes that this is not the case.
• The opponent then submitted that the priority document is a complete application and was also part of the file, and hence public in April 2018. This argument is not admitted as late-filed.
• Finally, the opponent invokes that D1, the WO publication of the patent family of D1, which was published end of May 2008, entered the EP regional phase and is a novelty-destroying prior right for some claims of the opposed patent and full prior art for other claims of the patent which lack priority.
• The CL patent office published (at least) the abstract of the invention one month before the expiry of the 18 months period from the priority date. 
• " During oral proceedings and after the board announced that D1 did not represent an enabling disclosure insofar as the product of example 7 was concerned, the appellant [opponent] submitted that D1a had entered the European phase. It was a document pursuant to Article 54(3) EPC D1a and was relevant for the novelty of the subject-matter claimed in the patent, more specifically pursuant to Article 54(3) EPC for claim 1 and pursuant to Article 54(2) EPC for the process claims. D1a comprised an example corresponding to example 7 of D1 in its entirety (pages 42 - 45)." 
• "  Since no exceptional circumstances justifying the submissions relating to a new objection based on D1a during oral proceedings were provided by the appellant and none were apparent to the board, the board decided not to admit the objection based on D1a into the proceedings." 

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

List of cases 2024

Key points

• The list of cases of the Boards for 2024 is published. 
• Oldest appeal in the list: T 0419/16, EP 05713577.4, patent granted in 2010, opposition decision in 2016. There was an interlocutory decision in 2022 deciding a number of substantive points and staying the proceedings as long as G 1/22 was pending.
• Only one case from 2017, namely one of the appeals leading to G 1/22. 
• From 2018, 4 cases; 2019: 48; 2020: 155; 2021: 560; 2022: 1614; 2023:105.
• One case concerns an application with a filing date in 2003, appeal T 0946/22. It is not a divisional application. Filed as EP direct in 2003, search report in 2004, Communication in 2007, then in 2012, summons in 2016, oppo filed in 2017 (05713577.4). 
• Appeals in cases with filing date (date of receipt of the application) in 2004: 12 cases, 2005: 19 cases, 2006: 29 cases; 
• Based on the first two digits of the application number which seem to refer to the year of receipt for divisional applications.  
• One case has a filing date in 2021: 21151843.6, an appeal against a quick refusal of a divisional application with a parent application already having been considered by a Board in appeal. 
• Appeals before the Legal Board of Appeal are not included in the list. 

EPO 

The link to the list is provided after the jump.

T 1768/20 - Obtaining a design model by simulations

Key points

•  " Claim 1 of the main request reads as follows: "Method for generating a design model with an improved characterization of a standard cell with adaptive body biasing in a circuit design process of said cells in digital circuits fabricated in a foundry, whereby the cell is defined by subject to variations due to the fabrication process P of said foundry, a supply voltage VDDnom and an operating temperature T, the method comprising the following steps: considering static deviations in the supply voltage VDDnom ..." 
• " The board considers that, in the current case, the result of the calculations effected by the method steps of claim 1 is a design model with an "improved" characterisation that is obtained by simulation (see characterising part of claim 1, for example) of a standard cell which [design model (?)] is provided in a library file. Such a library file is, at least according to the description, used by customers in later stages of the overall design process [] but the method of claim 1 does not contain steps specifying the use of the produced library file in later design or manufacturing steps. A use of the design model in a manufacturing step would have been particularly relevant since the Enlarged Board of Appeal considered the inclusion of a manufacturing step to be an argument in favour of patentability (see point 134 of decision G 1/19)." 
• " The board is aware that claim 1 ... specifies the ultimate aim of using the improved design model of a standard cell for fabricating integrated chips (digital circuits) in a foundry. However, the manufacturing of a designed digital circuit using the improved design model is neither specified as being part of the method of claim 1 nor implied by specifying the ultimate aim of the design process. Since the result of the method of claim 1 is calculated data for an improved design that is obtained using simulation, it follows from points 97, 98 and 138 of decision G 1/19 that the improved design does not contribute to inventive step since no "further" technical effect, such as controlling a machine in the foundry during a manufacturing process, is derivable." 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 0835/21 - A valid functional antibody claim

Key points

• This case seems to illustrate that there is no Amgen v. Sanofi rule at the EPO. 
• Claim 1 is directed to an antibody defined purely in functional terms, i.e. in terms of what it binds to, without any restriction on the sequence/composition of the antibody itself.
• " A monoclonal antibody or an antigen-binding fragment thereof that specifically binds to human low-density-lipoprotein receptor-related protein 6 polypeptide (LRP6) having the amino acid sequence of SEQ ID NO:1, is capable of antagonizing the Wnt signaling pathway, and inhibits Wnt3- and Wnt3a-specific signaling activity, wherein the antigen binding portion binds to an epitope of human LRP6 within amino acids 631-932 of SEQ ID NO:1 as shown in Table 1." 
• On Art.83: " The preparation of a monoclonal antibody that binds to an epitope within a defined amino acid sequence, i.e. a known target, for example by immunisation of an animal with a protein or peptide consisting of or contained within the defined amino acid sequence, or by phage display using such a peptide, is a routine task for the skilled person and does not require any inventive activity. " 
• " The scant number of exemplary Fabs disclosed in the application, the lack of disclosure of the sequences of these exemplary Fabs, the lack of a direct link between Tables II and III of the application and the missing figures are hence not in themselves sufficient to call into question the general teaching in the application that the Wnt ligands fall into two groups which are preferentially antagonised by LRP6 antibodies binding to different propeller regions of LRP6, a teaching which is incidentally supported by post-published documents D2 and D5. Therefore, this argument does not persuade the board either." 
• On inventive step: " Document D8 discloses a monoclonal antibody that binds to the propeller 2 domain of LRP6 and inhibits Wnt3a-induced signalling activity (see point 52. above). The claimed antibody differs from this in that it binds to an epitope within amino acids 631 to 932 of SEQ ID NO:1, i.e. to an epitope within the propeller 3 domain of LRP6. Moreover, document D8 is silent on whether or not the inhibition of Wnt3a-induced signalling that it discloses is Wnt3- and Wnt3a-specific, as required for the claimed antibody. " 
• " The objective technical problem can therefore be formulated as the provision of an antagonistic LRP6 antibody that preferentially inhibits Wnt3 and Wnt3a signalling activity over signalling activity induced by other Wnt ligands "
• "  Nothing in the prior art pointed the skilled person towards an antibody that bound to an epitope within the propeller 3 domain of LRP6 as a solution to this technical problem. Indeed, it was not known in the art that different Wnt ligands bound to different propeller domains of LRP6, and that therefore antibodies that preferentially inhibited the signalling activity induced by particular Wnt ligands could be prepared by targeting different LRP6 propeller domains. The link between binding to the propeller 3 domain of LRP6 and preferential inhibition of Wnt3 and Wnt3a signalling activity was therefore not suggested in the prior art and hence was not obvious to the skilled person." 
• " it was not obvious to the skilled person, solely from the fact that Dkk1 binds to the LRP6 propeller 3 domain, that an LRP6 antibody that bound to the propeller 3 domain would inhibit Wnt3- and Wnt3a-specific signalling activity. This line of argument is therefore not persuasive. No other arguments that took the preferential inhibition of the Wnt3- and Wnt3a-induced signalling activity by the claimed antibodies into account were submitted by the appellant. Hence, the claimed subject-matter involves an inventive step over the antibody disclosed in document D8."
  

The link to the decision is provided after the jump.

T 1564/21 - Poor job of the examining division, no substantive judgment in appeal

Key points

• The application is refused. The applicant appeals. 
• The applicant: "For the avoidance of doubt, we are not requesting remittal and we are not formally alleging that any substantial procedural violation has taken place. We are also not requesting a refund of the appeal fee. However, owing to the poor reasoning that has plagued examination proceedings on this application, we are requesting that the Board exercise its discretion to allow us to file further requests (in addition to or in replacement of the current claim requests) in the event that it raises new objections or presents a logical chain of reasoning that was lacking in the examining division's decision."
• The Board: " The wording of the requests' claims is irrelevant to this decision." 
• The Board considers the decision to be insufficiently reasoned (Rule 111(2) EPC).
• The Board: " The other main reason for refusal seems to be the objections under Article 56 EPC. Here, the examining division merely states that the formulated objective technical problem "cannot be solved by the claimed invention due to a total lack of required technical information" and that "the whole of claim 1 is built on a wish of a hypothetical device". The reader must again speculate whether the real objection is about sufficiency of disclosure, since this reasoning has nothing to do with inventive step. As to the alternative reasoning provided with reference to documents D2, D4 and D5, the cited passages, where they exist at all, have nothing to do with the problem of pairing devices in a surgical hub environment that the examining division had identified, and thus lack a logical chain of reasoning. " 
•  "the board noted that the examining division's statement under point 1 of the communication dated 10 December 2020 (also cited by the appellant), which reads "For the shake [sic] of procedural efficiency and economic use of resources - also of the EPO - it is recommended to consider an appeal [emphasis by the board] based on a written decision.", was an unacceptable invitation for such forum shopping." 
• " The appellant  [ultimately indicated] that it was in favour of the case being remitted to the examining division." 
• The case is remitted. The appeal fee is reimbursed. 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

G 1/22 - Entitlement to priority (preliminary post)

Key points

• In a well-written decision, the Enlarged Board, in practical terms, prevents opponents in general from attacking the validity of the priority of a patent based on an alleged lack of entitlement of the application to the priority right on the filing date of the patent, by creating a strong but rebuttable presumption that the applicant is entitled to the priority right if priority is claimed in accordance with the formal requirements of Article 88 EPC. This presumption is based on the observation that the subsequent patent application is usually filed when the priority application is still secret and that priority documents are normally only issued to the applicant. Hence, a party being able to file the patent application with the right text and being able to file a priority document can be presumed to have some connection to the applicants of the priority application. 
• Moreover, the priority right can be assigned by an implied agreement, and the assignment does not need to be in writing or signed by the parties. This applies to all priority rights that are claimed for the benefit of subsequent European patent applications, hence also if the priority application is, e.g., a US provisional application. National law is not to be used (with a minor exception); the Enlarged Board thereby departs from the until now prevailing case law of the Technical Boards of Appeal. 
• Very interestingly, the Enlarged Board arrives at this rule by deciding that the validity of a transfer of a priority right, in terms of formal conditions, must be determined according to the EPC as autonomous law.
• The Enlarged Board confirms that the EPO is competent, i.e. has jurisdiction to assess the entitlement to the priority right. The right of Art. 87(1) EPC is a distinct right from the entitlement to the European patent application of Art.60(1) and Art. 60(3) EPC.
• I aim to provide a more extensive analysis of the decision in due time. 
• To make this post not too boring: can it be concluded that T 62/05 was not wrong after all in point 3.7? (though the TBA in that case was too strict in r.3.8-3.9; but note that the TBA did consider the alleged implicit and tacit transfer of rights in r.3.12).
• Stay tuned!

EPO 

The link to the decision is provided after the jump.

T 1198/20 - Filed the day after

Key points

• The proprietor files a reply to the Notice of opposition without requesting oral proceedings and without filing auxiliary requests. This means that the OD can revoke the patent if one of the claims as granted is invalid in view of the objections raised by the opponent; the decision is then issued in writing.
• In this case, the written decision of the OD to revoke the patent is dated 17 March 2020 and indicates that it was handed over to the internal post of the EPO on 10 March. The proprietor filed auxiliary requests on 11 March (we don't know when the document became visible in the online file).
• G 12/91: "Internal EPO instructions make clear that a period of three days always elapses between the date-stamping of a decision and its despatch." 
• As a comment, I don't know what "handed over" means in the context of the EPO's operations in March 2020, because there is a separate document in the file saying that the decision was printed (note, the Corona lockdowns may have started on 15 March 2020). Is it certain that a paper document of the decision existed on 10 March? At least for the present situation, what does "hand over" mean for electronic documents? 
• The Board applies G 12/91: the OD was no longer competent to modify the decision on 11 March and did not need to consider the auxiliary requests.
• " Article 101(1), second sentence, EPC does not require the opposition division to send a communication with a preliminary opinion before giving its decision. In addition, not issuing at least one communication under Article 101(1) EPC cannot in itself substantiate an assertion of an infringement of the right to be heard (see Case Law of the Boards of Appeal of the EPO, 10th edition, 2022, IV.C.6.2).
  On 4 July 2019, the opposition division had indeed issued a communication to the patent proprietor with a request to file its observations on the notice of opposition. On 4 November 2019, the patentee filed its reply to the notice of opposition. The opposition division based its decision on the grounds and evidence set out in the notice of opposition, i.e. on grounds and evidence on which the patent proprietor had already had an opportunity to present its comments. Hence, the requirements of Article 113(1) EPC are fulfilled.
  As the patent proprietor had not requested oral proceedings as per Article 116(1) EPC, the proceedings could be concluded with the decision to revoke the patent in written proceedings. Hence, there was also no need to issue a summons accompanied by a preliminary opinion and fixing a final date for making written submissions according to Rule 116(1) EPC."

• The 13 auxiliary requests filed on 11 March, maintained with the Statement of grounds, are a case amendment in appeal and are not admitted under Art. 12(4) RPBA.
• 
  
• 
  
• The opponent's request for a cost apportionment is refused; it was based on the costs for replying to the 13 inadmissible auxiliary requests. " Article 16 RPBA 2020 lists examples of specific situations in which an apportionment of costs may be justified. The Board notes that this article mentions only amendments under Article 13 RPBA but not amendments under Article 12 RPBA - which occur at the earliest stage of the appeal proceedings.
• 
  
• In any case, as submitted by the appellant, it was part of its due diligence to present (and maintain) its complete case, including all requests, with the statement of grounds of appeal in view of Article 12(3) RPBA 2020. The Board does not consider the appellant's conduct in this respect to be culpable, irresponsible, malicious or even abusive.
• 
  
• Moreover, preparations for discussing the admittance and substance of auxiliary requests are part of the normal work that can be expected of any party"

EPO

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 1886/19 - Commerical product and Art.83

Key points

•  This case is about commercially available products and Art.83. 
•  "The respondent [opponent] submitted that the subject-matter of claim 1 of the main request was not sufficiently disclosed. In particular, the respondent argued that there were no examples in the patent/application as filed and no common general knowledge which taught the skilled person how to prepare the bis-azo dye referred to in claim 1 of the main request." 
• " The board agrees with the respondent. The application as filed does not give the skilled person any guidance on how to prepare the bis-azo dyes defined in claim 1 of the main request. In particular, example 1 of the application as filed refers to "Dye inventive" [this is compound BA1].  [ a structural formula is shown].
• " the application as filed does not disclose any synthesis for compound BA1, which is a bis-azo dye according to claim 1 of the main request. Nor does the application as filed include any reference to how compound BA1 can be prepared or supplied." 
• " no common general knowledge available to supplement the information contained in the application as filed so as to give the skilled person guidance on how to prepare compound BA1 or any bis-azo dye as defined in claim 1 of the main request. Therefore, the skilled person cannot prepare these dyes without undue burden." 
• " The appellant [patentee] submitted that compound BA1 was a product available from a manufacturer, namely Colour Synthesis Solutions Ltd. The skilled person could have purchased compound BA1 in order to prepare the claimed compositions. The claimed invention was thus sufficiently disclosed." 
• " The board does not agree. First, as submitted by the respondent, the application as filed does not identify compound BA1 as a product available from a specific manufacturer. The manufacturer referred to by the appellant, i.e. Colour Synthesis Solutions Ltd., is not identified in the application as filed either. Lastly, it has not been established that BA1 was a commercial product that the skilled person could have purchased."
• The Board considers a number of further documents in technical detail.
• The claim is held to be insufficiently disclosed. 

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the decision text.

T 0915/19 - Basis in patent as granted is irrelevant

Key points

• The opponent raises an objection under Art.100(c), arguing that the amended claims lack basis in the claims as granted. 
• "The argumentation of the opponent, however, cannot be followed since it relies on a discussion of the basis in the granted claims which is not relevant in the present case as the granted claims do not correspond to the claims as filed." 
• The Board uses the opportunity to summarize the requirements of Art. 123(2): "The "gold standard" (G 2/10 []) for assessing compliance with Article 123(2) EPC is the following: any amendment to the parts of a European patent application or of a European patent relating to the disclosure (the description, claims and drawings) is subject to the mandatory prohibition on extension laid down in Article 123(2) EPC and can therefore, irrespective of the context of the amendment made, only be made within the limits of what a skilled person would derive
• directly and unambiguously, 
• using [his/her/their] common general knowledge, 
• and seen objectively and relative to the date of filing, 
• from the whole of these documents [i.e. the description, claims and drawings] as filed" 
• I'm not 100% sure if all national courts (and UPC divisions) will consider the basis in the patent as granted to be irrelevant, though the EPC is quite clear about it.

EPO 

The link to the decision is provided after the jump.

T 1662/21 - On the meaning of Rule 116(2) in opposition

Key points

• The appellant/opponent complains that the OD had incorrectly admitted an auxiliary request that was filed by the proprietor by the deadline under Rule 116(2) EPC.
• "According to Rule 116(2) the patent proprietor (in opposition proceedings) may be invited to submit documents that meet the requirements of the Convention (i.e. amendment requests), by the date specified in Rule 116(1), second sentence. After that date the third and fourth paragraphs of Rule 116(1) EPC will apply mutatis mutandis : new requests filed after that date need not be considered unless admitted on the grounds that the subject of the proceedings has changed."
• " It is generally accepted that the purpose of Rule 116 is to prevent parties from seeking unjustified procedural advantages by abusive tactics in disregard of procedural economy and to the disadvantage of other parties, see CLBA, 10th edition 2022, III.C.6.3.1f. The rule is thus seen to serve fairness and transparency in the lead-up to the final deciding stage of the procedure." 
• "  One can debate whether a notification of the grounds prejudicing maintenance refers in opposition also (as it does in examination) to a summons or communication that notifies the division's provisional opinion; or that in the fourth sentence [of] Rule 116(1), which applies mutatis mutandis in opposition [*], a change of subject of the proceedings encompasses a subsequent reversal of a preliminary opinion that was notified in the summons or communication. "
• [*] - probably read: to auxiliary requests / claim amendments
• The fourth sentence of Rule 116(1) at issue: "New facts and evidence presented after that date need not be considered, unless admitted on the grounds that the subject of the proceedings has changed."
• "T0688/16, reasons 2.1, saw it this way, reading Rule 116(2) as requiring a notification that grounds prejudiced maintenance before a division could decide not to consider a request, finding that this corresponded to the guidance provided in the Guidelines for Examination, E-III, 8.6. Accordingly, the proprietor must always be given an opportunity to submit amendments intended to overcome objections raised by the division that depart from a previously notified opinion. The Board tends to agree, adding that this does not mean that any amendment then submitted must be admitted."
• " The division will first need to establish whether amendments are indeed intended to overcome the objections, and do so in a way that is appropriate and proportionate to the circumstances. They thus still have discretion, see also T0966/17, but should exercise it differently from when deciding admission of amendments filed after the Rule 116 date that are not justified by a change of the subject of the proceedings." 
• "  The Board does not agree that offering the proprietor an opportunity to amend when confronted with a reversal in a previously positive provision opinion would be inherently unfair to an opponent as argued by the [opponent] Appellant. Firstly, for the proprietor revocation of the patent, if confirmed on appeal, is the end of the road; for an opponent even after appeal the possibility of national invalidity proceedings remains. Secondly, this depends very much on how the discretion is exercised and what criteria are applied. In the Board's view the criteria set out in the Guidelines cited above appear to strike a fair balance between the opposing interests of the parties and the overall interest of procedural economy. Naturally, the opponent must also be heard before any decision on admission is taken." 
• As a comment, alternative case law could emphasize that the proprietor already has an opportunity to submit auxiliary requests with their first reply to the opposition. 

• Turing to the case at hand: "As can be inferred from the minutes, see the section bridging pages 4 and 5, it must have become clear to the proprietor in the discussion of the previous (withdrawn) auxiliary request, how to fix the problem, namely by combining granted claims 1 and 9 as suggested by the opponent. They then did so in the next (present) auxiliary request that replaced the previous request which was not admitted. In the Board's view it would have been unreasonable and unequitable to then block them from such an attempt, which the division - in the light of the previous discussion - would have considered likely to succeed, at least at first glance, merely because they should not be allowed to row back from a previous attempt. That the division then did consider a criterion it needn't have makes no difference for the appellant, as the outcome would have been the same (admission) if they had not considered it. Had the outcome been different (non-admission), the proprietor might have had reason to argue improper exercise of discretion as based on the wrong criteria."
• 
  
• EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 2347/19 - Should have used the lunch break

Key points

•  In this opposition appeal, filed in 2019, three auxiliary requests filed with the Statement of grounds are not admitted under Art. 12(4) RPBA 2007. 
• The Board: " Furthermore, it is apparent from the minutes of the oral proceedings on 17 April 2019 (page 2, penultimate sentence) that, after the rejection of the main request, the appellant-patent proprietor had time during the lunch break to reflect on how to proceed. At that time, the patent proprietor did not make any attempt to overcome the sufficiency objection by filing a new claim request. It instead stated that it wanted to proceed with the then pending auxiliary request 1. " 
• " At the oral proceedings before the board, the appellant-patent proprietor did not submit any argument on this point. Therefore, auxiliary requests 1 to 3 were not admitted into the appeal proceedings pursuant to Article 12(4) RPBA 2007." 
• " A preliminary opinion [of the opposition division] in preparation for the oral proceedings is not binding and may change during the oral proceedings. A change of mind of the opposition division following discussion at the oral proceedings to take up arguments considered not convincing in its preliminary opinion is a possible development in the proceedings and cannot come as a surprise." 
  
  
• The patent concerns a second medical use claim.: "Glucocorticoid (GC) for use in a method of prophylaxis of neurological adverse events caused by the administration of a CD3 binding domain [compound], wherein [detailed features]". 
• "The parties disputed whether the teaching on blinatumomab in the examples of the application as filed could be generalised to any CD3 binding domain." (blinatumomab is an example of a compound/domain that binds CD3; hence, blinatumomab can cause neurological adverse events that are prevented by Glucocorticoid.
• The Board: "The term "CD3 binding domain" encompasses a vast range of substances, including, inter alia, small peptides, antibody constructs and engineered proteins. These substances may exert different biological functions, even with opposite effects. For instance, the CD3-specific antibody OKT3 may both activate or block T-cells in a time-dependent fashion (D31, page 2, second paragraph). As the mechanisms by which blinatumomab causes NAEs and dexamethasone prevents those NAEs were unknown at the filing date and the NAEs could not be univocally attributed to the fact that blinatumomab binds the CD3 receptor, there was no scientific rationale for the skilled person to conclude that dexamethasone could prevent the NAEs caused by any CD3 binding domain within any therapeutic context. 
• Therefore, the subject-matter of claim 1 of the main request is not sufficiently disclosed."
• Auxiliary Request 4 is considered to be allowable. 

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 1408/19 - Only new attacks in apeal; admissibility appeal

Key points

• The opponent appealed (in 2019), basing the appeal only on new attacks. The Board concludes that even if all attacks are inadmissible under Art. 12 RPBA 2007, this does not make the appeal inadmissible. 
•  " The board observes that the respondent [proprietor] did not present any formal legal basis for its argument that the new and arguably inadmissible attack directly leads to inadmissibility of the appeal. The board is not convinced that, apart from the factual basis, the argument is correct in law. The board is not aware of any legal provision, either in the EPC or in the RPBA, that would stipulate inadmissibility of the appeal as the legal consequence where no attacks remain in the appeal as a result of their non-admission. Nor is this supported by the case law. " 
•  " The fact that attacks presented in the appeal may not be admitted in the course of examination of the appeal does not lead to the (retroactive) finding that the appeal was not reasoned (and hence inadmissible), but at most to the dismissal of the appeal. Whether the reasons are suitable for achieving the purpose of the appeal is a question of allowability and not admissibility, at least as long as such reasons are not manifestly insufficient or irrelevant. The board's possible finding on the non-admittance of the attack is based on the board's discretionary powers. By contrast, the usual admissibility conditions of an appeal are stipulated by specific legal provisions, normally requiring that the board examine these conditions ex officio. The board's finding on the admissibility of the appeal is not a discretionary decision, but follows directly from the letter of the law. However, this question need not be decided in the present case, as the board refrained from not admitting the argued new attack, as set out below." 
• The observations of the Board are obiter as the new attack is admitted into the procedure.
  
  
• Regarding the admissibility of the opposition, one prior art document (D2) was identified in the Notice with an incorrect publication number. The Board confirms the decision of the OD that this error does not render the opposition inadmissible. This issue is unclear because, on p.9 of the Notice, one attack is lack of inventive step over a public prior use with D2 or D3. There is no such thing as the partial inadmissibility of a Notice of opposition, so at least the alternative document D3 should make the issue moot.
• The headnote of the decision is about this issue. 
• The Notice was filed by fax in 2016, and patent publication D2 was not attached to it.
• The appeal is dismissed after examination of the substantive grounds.
• 
  

• 
  

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 2226/19 - Auxiliary Request, Art. 123(2), so remit

Key points

• The OD found the claims of the main request to be allowable. The Board finds them to lack an inventive step. The Board then arrives at the auxiliary request that was (timely) filed before the OD.
• The Board in translation: " In Annex 1 to the statement of grounds of appeal, the appellant [opponent] raised additional objections under Rule 80 EPC and Articles 56, 83, 84 and 123(2) EPC in connection with the pending auxiliary request I, which relate to the changes in auxiliary request 1 compared to the main application." 
• Note, using an Annex for these objections is accepted in this case under Art. 12 RPBA.
• " Because the opposition division was of the opinion that the patent based on the main request met the requirements of the EPC, the interim decision does not contain a substantive assessment of the patentability of the auxiliary request in the version of February 27, 2019. Consequently, the board would have to examine the auxiliary request which takes into account all further objections raised by the appellant under Rule 80 EPC and Articles 56, 83, 84 and 123(2) EPC." 
• " After considering the circumstances of the present case, the board concludes that the questions relevant to patentability in the present case, including, but not limited to, the examination of whether the requirements of Article 123(2) EPC and inventive step are met, may not be able to be decided without unreasonable effort. There are therefore special reasons for the case to be referred back to the lower court (Article 11 RPBA, Article 111 EPC)."
• As a comment, it does not seem unusual to me that there are additional objections from the opponent against the lower-ranking requests. 
• We will have to see how many years the opposition procedure will additionally take by the remittal. 
• 
  
• 
  
• EPO 

The link to the decision is provided after the jump.