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"
