T 0299/24 - Correcting errors in amended claims

Key points

• Claim 1 of the former main request reads: "(a) "Headrest (10), in particular headrest for vehicle seats, (b) comprising a bone conduction two-way sound transmission system (1), which in turn comprises at least one bone conduction loudspeaker (5) and at least one bone conduction microphone (7), ..."
• "With its written reply to the board's [preliminary opinion], the applicant filed a corrected main request, replacing the phrase "in particular headrest for vehicle seats" in claim 1 with the wording "headrest for vehicle seats" []. It framed this submission as a correction of an error under Rule 139 EPC."
• The Board: "Under Rule 139, second sentence, EPC, if a request for correction concerns the claims, the "correction must be obvious in the sense that it is immediately evident that nothing else would have been intended than what is offered as the correction". According to the established jurisprudence of the Boards of Appeal (see G 3/89, Reasons 5 and 6; G 11/91, Reasons 6), a two-step approach applies in this regard. It must first be established that it is obvious that an error is in fact present in the document filed with the EPO, the incorrect information having to be objectively recognisable by the skilled reader using their common general knowledge. Secondly, the correction of the error must be obvious."
• My analysis is that Rule 139, second sentence, is an implementation of Article 123(2) EPC and hence provides a rule for determining when a purported correction has sufficient basis in the application as filed (i.e., does not extend beyond the content of the application as filed). This follows directly from G 3/89, hn. 1, in my view ("Such a correction is of a strictly declaratory nature and thus does not infringe the prohibition of extension under Article 123(2) EPC."
• In the present case, the amended claim had an undisputed, explicit basis in the application as filed. The issue was not whether the application as filed contained an error. Hence, I don't think the second sentence of Rule 139 applied.
• Instead, the case concerns a case amendment, in particular one under Article 13(2) RPBA. Depending on the facts of the case, if a "subsequently filed document" (i.e., a document filed after the filing date of the patent application) contains an error, the party concerned may correct that error later in the procedure. The evident nature of the error and the correction (or lack thereof) are among the factors the board must consider when deciding whether to admit the correction. At any rate, a correction of an amended claim 
• Credit to Mr Thomas for flagging the decision on his weblog.
•  The Board does not admit the amended set of claims (with reasoning that would also apply under Art. 13(2) RPBA, in my view): " Crucially, nowhere in the statement of grounds of appeal does the appellant base any argument on the headrest being exclusively limited to a "headrest for vehicle seats". The appellant neither stated that claim 1 was restricted to overcome a specific objection, nor did it rely on the specific vehicle-seat environment to establish an inventive step. Because the appellant's technical arguments apply perfectly and seamlessly to the broader claim wording ("in particular headrest for vehicle seats") that was actually filed, the skilled reader reviewing the statement of grounds of appeal alongside the claims would find a coherent, self-consistent appeal case. There is thus no logical disconnect that would alert the skilled reader to a mistake.
• "Since the request for correction under Rule 139 EPC has been refused, the "corrected" main request constitutes an "amendment" of the appellant's appeal case. However, leaving the question of admittance aside, the board considers the "corrected main request" not to comply with Article 56 EPC. In this regard, the board endorses the examining division's assessment of inventive step set out in Reasons 10 of the appealed decision, for the following reasons."
• This makes the whole discussion of Rule 139 moot (or obiter), it seems to me.

EPO 

The link to the decision is provided after the jump.

T 1462/24 - Allocation of files to Boards (DMF for MS)

Key points

• A case with fourteen opponents and an opponent, about a (blockbuster) medicine (DMF for MS).
• Opponent 2 filed a Notice of appeal three days after the oral proceedings before the OD. O2 wrote that: "The subject-matter of the claims has changed significantly since the International Patent Classification was provided. The patent now claims a specific dose'"   and requested that  " these appeal proceedings be allocated to board of appeal 3.3.04 or 3.3.07" (instead of Board 3.3.08).
• An opposition was also filed against the parent patent, and the appeal in that case was decided by a panel including Ms P as the rapporteur. The Board (3.3.01) in that case dismissed the proprietor's appeal against the revocation of the patent (based on a lack of basis under Art. 123(2)). 
• The Chair of Board 3.3.08 and the Chair of Board 3.3.04 decided to transfer the case to Board 3.3.04. The Chair of Board 3.3.04 is Ms P, who is also the chair of the panel deciding the present case.
• The current Board finds the (very similar) claim to lack basis in the application as filed, for essentially the same recited feature as in the parent case.
• According to the EPO register, there are 9 divisional applications in this patent family. I wish to refrain from commenting on this point here, as it is sensitive after Copaxone (and I care to note that the proprietor did not disapprove of the text of the patent, allowing us and the opponents to benefit from the reasoned decision).
• "Oral proceedings took place before the Board on 25 and 26 November 2025 in the presence of all parties save for opponent 10. In the course of these proceedings, the patent proprietor confirmed that its request for referral of questions to the Enlarged Board of Appeal was no longer conditional and requested that three questions be put to the Enlarged Board of Appeal under Article 112(1)(a) EPC. The Board rejected this request. Subsequently, the patent proprietor submitted two written statements of objections under Rule 106 EPC, one on 25 November 2025 and one on 26 November 2025 (see Annexes of the minutes of the oral proceedings before the Board). The Board rejected these objections. At the request of all opponents present at the oral proceedings, the Board ordered a different apportionment of costs. "
• The proprietor is unhappy about the transfer of the case to Board 3.3.04, and raised an objection under Rule 106 - after the Board had announced the unfavorable conclusion on Art. 123(2) during the hearing.
•  The Board: "the RPBA and the BDS [Business Distribution Scheme] do not provide for parties to appeal proceedings to participate in the procedure set out in Article 1(2) of the BDS and thus do not provide for a right to be heard on the proper allocation of a case file. The latter is an internal case management process involving solely the Chairs of the Boards and, in case no agreement is reached on the allocation, the Presidium. Since the allocation of an appeal case to a Board of Appeal is not a subject for disposition by the parties, any submission by a party to appeal proceedings regarding the reallocation of an appeal pursuant to Article 1(2) of the BDS, including any wish of a party that an appeal be heard by a specific Board (e.g. opponent 02's request submitted in its notice of appeal for the appeal to be allocated to Board 3.3.04 or 3.3.07) is irrelevant and must therefore be disregarded."
• "The patent proprietor also made untenable assertions as to why the technical content of the appeal could not be a valid reason for the transfer (see letter of 14 March 2025, item 21 ii) and item 13), which ultimately amounted to an accusation of unprofessionalism or arbitrariness by the Chairs involved. The patent proprietor's unfounded accusations, which cannot be excused by a representative's lack of legal knowledge, culminated in an accusation of bias"

• "the objection pursuant to Rule 106 EPC came far too late to comply with the spirit and purpose of this provision, which is that a party should draw the Board's attention expressly, and separately from its other submissions, to any fundamental procedural defect to enable it to investigate and, if necessary, rectify the alleged defect while the proceedings are still pending. The Board therefore had no option but to dismiss the objections pursuant to Rule 106 EPC raised in the patent proprietor's letter dated 26 November 2025 also on formal grounds"

•  The Board considers that, despite repeated [questions] the patent proprietor has not provided any legitimate reason for its objections under Rule 106 EPC and their filing after completion of the debate on the merits of the appeal T 1462/24"

• " Since a whole day of discussions had been necessitated by the filing of the patent proprietor's unsubstantiated and even unwarranted objections set out in its letter dated 25 November 2025, which were specified and amended by its letter dated 26 November 2025, the Board considered it equitable to order the patent proprietor to bear the costs for remuneration of one day for at most two professional representatives present at the oral proceedings of 26 November 2025 for each opponent"

• "the patent proprietor remained convinced of its own biased view of events and accused the Chair involved in the reallocation and the Board subsequently constituted of having acted unlawfully. This was unprofessional and even disrespectful. While the patent proprietor's conduct can hardly be seen as compliant with its duty to act in good faith, it does not matter whether this conduct is also to be qualified as an abuse of proceedings since the request for reapportionment of costs could be allowed on the basis of Article 16(1)(c) RPBA"

EPO 

The link to the decision is provided after the jump.

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.