T 1179/23 - Not a realistic starting point

Key points

• " in the Board's view, the "simple mixture" mentioned on page 14 of D1 does not represent a realistic starting point. The starting point for assessing inventive step starting from D1 is therefore the multilayered compositions of examples C1 or C2. 
• The reasons are as follow.
• " Both appellants-opponents considered that the embodiment mentioned in the sentence on page 14 lines 7 to 8 of D1 relating to a simple mixture of isolated tartaric acid pellets and dabigatran represented the closest prior art embodiment."
•  The Board disagrees and is of the opinion that the skilled person reading the sentence on page 14 lines 7 to 8 of D1 understands it as speculative and as not referring to an actual concrete realisation of simple mixtures. The reasons are the following: ... the "simple mixture" ... is disclosed at one single occurrence in D1 in one single sentence, namely "Alternatively, the simple mixture of isolated pellets and dabigatran is filled into capsules or sachets" ... There is no further mention or description of this "simple mixture" in the entire document. 
• "the core of the invention [of D1] is indeed the "isolated pellets" but for the further preparation of multilayered compositions. Indeed claim 1, the "summary of the invention" (see page 6 of D1) and the examples of final compositions exclusively concern multilayered pellets containing tartaric acid and the active ingredient [ dabigatran etexilate mesylate (DEM) ] in different layers."
• "The starting point for assessing inventive step starting from D1 is therefore the multilayered compositions of examples C1 or C2."

EPO 

The link to the decision is provided after the jump.

T 0581/20, T 0134/23, T 0156/21, etc. - Spring cleaning? - Art. 15(9) RPBA

Key points

T 0581/20

• Decision taken 21.05.2024, issued in writing on 29.04.2026. 
• Claim 1:  "A method in a data processing system (102, 302) for temperature weighting in energy-usage measurements ...".
• No Communication under Art. 15(9) RPBA visible in the online file.
• The case took more than 6 years from the Statement of grounds. I wonder whether, once the 24-month target is passed, the extent of any further delay still matters (to the TBA itself or the BoA management). The same question can be raised for the 3-month period of Art. 15(9) RPBA. 
• I also wonder if the BoA management follows up on the (seemingly) lack of Art. 15(9) communications (see also the cases discussed below). 

• 
  
• T 0156/21
• Decision taken on  14.05.2024; online on 07.05.2026.
• No communication under Art. 15(9) RPBA is visible in the online file.
• The Board remits the case to the examining division for further examination (!)
• The invention relates to a combination of continuous integration (CI) of software development and change management computer systems (CMCS)."
• The Board disagrees with the examining division's application of the Comvik approach, yet does not expressly indicate which features it considers to be technical.
• "In this case, it appears that the invention should be analysed more specifically as either a further development of the revision control system of D1, by the same applicant, or a modification to the known continuous integration technique. Starting from either would then entail a precise analysis of the differences and the effect of the differences in the context leading to a statement of the problem solved."

T 0850/21

• Decision of 26.11.2024, issued on 22.04.2026.
• In the field of IT.
• No communication under Art. 15(9).
• https://www.epo.org/en/boards-of-appeal/decisions/t210850eu1

• T 0134/23
• Decision of 14.05.2025, online on 12.05. 2026.
• There was a Communication of the Board informing the parties about the delay, issued on 21.04.2026, almost a year after. No earlier communication under Art. 15(9) is visible in the online file.
• The decision seems a rather run-of-the-mill biotech case.
• https://www.epo.org/de/boards-of-appeal/decisions/t230134eu1

T 741/23

• Decision taken 14.05.2025, online on 29.04.2026.
• A pharma case, 8 opponents, Board 3.3.04.
• https://www.epo.org/en/boards-of-appeal/decisions/t230741eu1 
• We will see if a petition for review will be filed.
• Two timely communications under Art. 15(9) were issued.

T 1288/23

• A case in the field of logistics. Decision on  24.10.2025, online on 29.04.2026.
• No communication under Art. 15(9) visible.
• There were two other decisions regarding patent applications by the same applicant. 
• https://www.epo.org/en/boards-of-appeal/decisions/t231288eu1 

There were a couple of other decisions published in the last few weeks, with the oral decision already given in October and November 2025. 

Perhaps it was spring-cleaning time for some cupboards in Haar? Let's hope all the cupboards are now clear.

T 0953/23 - The proprietor's own prior use

Key points

• The inventor is "PREISSMAN, Howard".  The OD rejected the opposition. The opponent appeals. The proprietor is Keller Medical, Inc.
• "D1 is an article published in 2012, i.e. after the filing date of 29 April 2009 of the patent [filed without priority]. The article concerns the development of the "Keller Funnel". 
• "In the section of D1 entitled "Serendipity", second paragraph, it is explained that Mr Preissman perfected the funnel's design  ..."
• "On the first page of the article (p. 283 at the bottom right), it is stated that "[w]e began introducing the prototype and its potential benefits to influential plastic surgeons at the beginning of 2009 ...". The appellant [opponent] alleged that it followed from this passage that the invention had been disclosed to the public, namely to influential plastic surgeons, before the filing date of the patent in suit."
• The Board: "In the absence of any indication of a different understanding, the Board interprets the expression "at the beginning of 2009" in accordance with general linguistic usage. According to which "at the beginning of 2009" refers to a point of time not later than within the first three months of 2009. Had a later period been intended, wording such as mid 2009 would have been used. Thus, the Board is convinced that, on the balance of probabilities, the disclosure to the influential plastic surgeons did take place before the filing date of the patent in suit."
• The Board, earlier in the decision: "it is common ground that the facts relating to the prior use were not under the control of the appellant and that both parties had equal access to the evidence. In accordance with the principle of free evaluation of evidence and in line with the established case law (see CLBA 11th edition, III.G.4.3.2 a)), the Board assessed the relevant facts on the basis of the balance of probabilities."
• I'm not sure if the part in italics is entirely accurate, but for the outcome of the case, this detail does not matter.
• The patent is revoked.

EPO 

The link to the decision is provided after the jump.

R 0010/25 - Petition for review cases

Key points

• The petition for review was filed on  17.04.2025. 
• Oral proceedings were held on 09.01.2026, i.e. within a year.
• The written decision was issued on 07.05.2026 (about four months later). There is no official target for the written decision in petition for review cases, but still. 
• Incidentally, the backlog of petition for review cases has been significantly cleared, and so far, there has been a dramatic drop in new cases in 2026. Case R 2/26 was filed on 11.05.2026. For comparison, 24 cases were filed in 2025.
• My theory is that backlogs themselves made petitions for review attractive: one could easily buy two more years of 'pendency' for a patent (application) for a relatively modest fee, two years that allowed in-house counsel to tell upper management that there was still no final decision on the patent's fate. 
• As I see it, the idea of the EPC 2000 legislator (Diplomatic Conference) was that a petitioner would receive a summons by return mail, with the term of the summons typically shorter than two months (as expressly provided in Rule 109(1) EPC) in the first ex parte stage of the procedure (with a three-member panel). 
• Summons in case R 1/26 have already been issued on 26.03.2026, with the hearing scheduled for 05.11.2026.
• One case from 2023 and two cases from 2024 are still pending. In one case, the oral proceedings were held on 06.10.2025; in another, on 08.12.2025, but there is no written decision yet in either. As said, there is no official target for the written decision.
• The oldest case with no action yet by the EBA is R 7/25, which has been pending since 27.03.2025.

EPO 

The link to the decision is provided after the jump.

T 1319/24 - How many ARs?

Key points

• "The patent proprietor requested that the decision under appeal be set aside and that the patent be maintained as granted (main request) or on the basis of one of auxiliary requests 1 to 5, 6a, 6 to 17, 18a, 18 to 29, 30a, 30b, 30, 30c, 30d, 31 to 33, 34a, 34 to 46, 47a, 47, 48a, 48, 49a, 49, 50a, 50b, 50, 50c, 51a, 51, 52a, 52, 53a, 53, 54a, 54, 55a, 55b, 55, 55c, 56a, 56, 57a, 57, 58a, 58, 59a, 59, 60a, 60b, 60, 60c, 61a, 61, 62a, 62, 63a, 63, 64a, 64, 65a, 65b, 65, 65c, 66a, 66, 67a, 67, 68a, 68, 69a, 69, 70a, 70b, 70, 70c, 71a and 71.

  Auxiliary requests 1 to 29, 30a, 30b, 30, 30c, 31 to 49, 50a, 50b, 50, 50c, 51 to 54, 55a, 55b, 55, 55c, 56 to 59, 60a, 60b, 60, 60c, 61 to 64, 65a, 65b, 65, 65c, 66 to 69, 70a, 70b, 70, 70c and 71 were filed with the reply to the opponents' statements of grounds of appeal on 30 May 2025. Auxiliary requests 6a, 18a, 34a, 47a to 49a, 51a to 54a, 56a to 59a, 61a to 64a, 66a to 69a and 71a were filed with the letter dated 23 October 2025. Auxiliary request 30d was filed during the oral proceedings on 11 November 2025."

• The patent is revoked. Key prior art is a Youtube video D3: "YouTube video of 28 June 2012 providing an overview of the INNOKIN iTaste VV device"

• The Board: 'Whether D3 reflects the subjective impression of a test user, as the proprietor put it, is therefore of little relevance. What matters is the information that the test user, by showing and describing a tested device, conveys to the person skilled in the art in the video D3."

• I guess that even higher numbers of ARs have been seen in EPO appeal cases. Questions to readers: What is the highest number of ARs in a case that you have seen?

EPO 

The link to the decision is provided after the jump.

T 0676/24 - A company pays the SME appeal fee

Key points

• The proprietor, a company, appeals and pays the reduced appeal fee. 
•   "With its communication of 17 June 2024, the board invited the patent proprietor to submit evidence that it was an entity referred to under Rule 6(4) and (5) EPC as mentioned in the above EPO Form 1038. Reference was made to point 4 of the decision of 14 February 2023 in case T 1678/21."
• The proprietor must file the balance sheet and official statements about the parent company and other group companies. 
• The Board:  "There is no provision corresponding to former Rule 6(5) EPC concerning the definition of micro, small and medium-sized enterprises in the Implementing Regulations amended by the Decision. However, section II.7 of the "Notice from the European Patent Office dated 25 January 2024 concerning fee-related support measures for small entities" (Official Journal EPO, 2024, A8) corresponds to former Rule 6(5) EPC. "
• The Board applies the guidance from the Notice of the EPO (which is not binding on the Boards by the way).
• " Number of employees - The board is satisfied that the patent proprietor's submissions in this regard are supported by the evidence on file. They cover the relevant periods 2022 and 2023 (see point (b) below). For the board it has thus been established that the patent proprietor, even including both companies in which it is a shareholder (Q-Services and Coim Tech) employs far fewer than 250 employees."
• "The proprietor has also established that no more than 25% of the capital of the three companies is held directly or indirectly by another company that is not an SME. The reason being that Q-TECH S.r.l. is owned by three natural persons. " (the owners are mentioned by name in the decision).
•  Turning to the declaration: "Rule 7b(1) EPC requires no declaration of eligibility for a reduction of the appeal fee. Nor is there any such requirement in the item 11 of Article 2 RFees specifying the reduced fee. Nor has the board detected any other legal basis. Cf. the analogous conclusion for former Rule 6(6) EPC in T 1678/21, point C.3.1 and the conclusion in T 553/25 for Rules 7a and 7b EPC." 
• "It follows from the previous section (b) that the requirement of a declaration in the section entitled "Declaration of entitlement" of the Notice (points 3 to 5) has no legal basis. "
• The appeal is also allowed. The OD apparently did not decide on the latest amended set of claims.
• "The board concludes from the above that the decision under appeal is based, inter alia, on a request relating to the patent as granted rather than on the request filed by the patent proprietor during the oral proceedings before the opposition division." 
• The appealed decision is set aside, the case is remitted, and the appeal fee is refunded.

EPO 

The link to the decision is provided after the jump.

T 1844/23 - Sufficiency of second medical use claim

Key points

• Filing date 15.03.20052025, revocation in opposition appeal on 02.12.2025, written decision 24.02.2026. Filing as a divisional application in March 2010 (just before the amendments of Rule 36, indeed).
• The Board, in machine translation: "The patent in suit lapsed in all contracting states during the appeal proceedings because the patent term of 20 years from the filing date, as defined in Article 63(1) EPC, expired on March 14, 2025. According to Article 76(1) EPC, the filing date is the filing date of the parent application. Following a corresponding notification from the Board, both the patent proprietor and several opponents requested, within the prescribed time limit, that the proceedings be continued in accordance with Rule 84(1) EPC."
• "Claim 1 of the patent is formulated in the form of a second medical use under Article 54(5) EPC and reads as follows: "Pharmaceutical composition comprising an effective content of antioxidants, for use in a method for protecting the skin from damage caused by infrared radiation, wherein the damage is caused by activation of the formation of matrix metalloproteinase-1."
• The alleged surprising insight is that IR radiation in sunlight, not only UV light, causes the formation of matrix metalloproteinase-1 through reactive oxygen species, as I understand it.
• The claim illustrates that a second medical use claim does not identify the compound by name or in any chemical way. It just says "antioxidant".
• The Board: "In the area of ​​patent claims formulated as medical use claims under Article 54(5) EPC, case law has developed such that the mere possibility of replicating the use is insufficient [under Article 83]. "
  "In the present case, it is therefore not sufficient if, as the appellant [proprietor] argues, the person skilled in the art could have achieved the claimed prophylactic effect more or less automatically on the filing date by applying a sunscreen conforming to the claim. Rather, it is required that, for the claimed invention to be sufficiently disclosed, the therapeutic or prophylactic activity of the substances or mixtures defined in the claim must be demonstrated or substantiated to the person skilled in the art in some way in the patent application itself. How exactly this is to be done—whether by direct experimental proof, by technically verifiable reasoning, or in another suitable manner—may then depend on the individual case. The reference made by the Opposition Division to the statements in point 77 of G 2/21 and the decisions of the Boards summarized therein is in any case justified."
• This body of case law also supports the novelty of some second medical use claims, even when a clinical trial directed to exactly the claimed medical indication had been published as prior art (albeit without results). 
• "This required proof or substantiation naturally refers to the therapeutic/prophylactic use defined in the claim as a whole, and not merely to parts of a mechanism postulated for the effect. This seems so self-evident that it is not even explicitly emphasized in the cited case law. In any case, the therapeutic effect mentioned in point 77 of G 2/21 obviously refers to the disease defined in the claim." 
• In the case at hand, the following mechanism was known: UV light → reactive oxygen species → MMP-1 → skin damage. However, the alleged link between IR radiation (as recited in the claim) and reactive oxygen species was not known, and this step constituted step (i).
• " Rather, proof or substantiation of a therapeutic or prophylactic effect of antioxidants in the skin damage defined in the claim must also relate to the fact that the entire postulated mechanism, i.e., also step (i), is actually present in the disease to be treated. "
• "Therefore, contrary to the appellant's submissions, the patent application does not disclose a technically comprehensible concept for the claimed further medical use of the antioxidants with regard to the claimed medical use. "
• "the appellant [proprietor] referred to various technical literature, scientific publications, test data, and advertising brochures concerning some of the products distributed by the opponents, in which the teaching described and claimed in the patent had subsequently been confirmed. 
• The Board: " The requirement of sufficient disclosure must, however, be met on the filing date. A lack of disclosure on the filing date cannot be remedied by subsequent information; see, for example, G 02/03, point 2.5.3 of the grounds for the decision. It was undisputed that, in the present case, subsequently submitted data cannot be used to remedy a deficiency in the disclosure of the patent in suit or the corresponding patent application that existed on the filing date. "

EPO 

The link to the decision is provided after the jump.