T 0200/25 - Various aspects of admissibility

Key points

• The OD revoked the patent. The proprietor appeals.
• The proprietor submits a test report D22 with the SoG. D22 is filed to support its earlier test report D21, which the proprietor had filed in the procedure before the OD.
• The Board, in translation: "D21 was filed in due time, albeit on the last day of the time limit set by the Opposition Division in the summons to oral proceedings for the filing of written submissions and/or documents (see EPO Form 2310Z of 29 January 2024) [*]. In light of this, it is understandable that the Opposition Division first formulated its criticism of D21 in the contested decision. Therefore, the filing of D22 with the statement of grounds of appeal constitutes a direct response to the contested decision."
• *: Compare T 0712/24.
• D22 is admitted.
• The opponent/respondent replied with a test report D23. "Although D23 was not filed together with Respondent 2's reply to the appeal, it was filed shortly thereafter (see Sections VII and VIII: 7 August 2025 vs. 10 September 2025). The Board therefore considers D23 to be an immediate response to the filing of D22."
• D23 is admitted.
• The opponent submitted D24 (standard DIN EN 1943:2002) after the Board issued its preliminary opinion.
• "Since D24 is expressly mentioned in both the patent in suit and granted claim 15, the Board further considered that the content of D24 – despite its filing at a very late stage of the proceedings – must have been known to the appellant. Its admission could therefore not have surprised her. In light of these exceptional circumstances, the Board did not consider it justified to disregard D24 under Article 13(2) of the Rules of Procedure of the Boards of Appeal."
• The opponent also filed D25, at the same time as D24, i.e., after the preliminary opinion.
• "D25 is a book excerpt on photoinitiators for acrylates"
• "in the Board's view, evidence relating to general technical knowledge is subject to the same provisions that apply to the admissibility of other evidence. The question, which was controversially discussed between the parties during the oral proceedings before the Board, as to whether D25 actually demonstrates general technical knowledge, is therefore not relevant to the decision on its admissibility and can remain open. "
• D25 is not admitted.
• The Main request is not novel over D1.
• AR-2 is held to be novel and inventive.

Insufficiency

• There was an objection of insufficient disclosure regarding AR-2. The Board must decide whether the objection is admissible.
• "Although the ground for opposition under Article 100(b) EPC had not been raised in the respondents' notices of opposition, the parties agreed that objections under Article 100(b) EPC against the present auxiliary request 2 had already been raised several times by both respondents in the opposition proceedings and in the first appeal proceedings [T 1973/19]. The appellant had also expressly addressed these objections (respondent 2's reply to the appeal: section 4.1; respondent 1's brief of 24 March 2026: section I.2; appellant's brief of 29 June 2023, pages 4 and 5, and of 14 December 2023, section 2.b). However, since the Opposition Division had concluded that auxiliary request 2 (then auxiliary request 3) did not involve an inventive step, it did not address the issue of sufficient disclosure. Although the admissibility of this ground for opposition was addressed in the preliminary opinion of the Opposition Division of 29 January 2024 (page 10, first paragraph), no formal decision was made on this matter. Therefore, the present appeal proceedings had to first decide on the admissibility of this ground for opposition."
• "Objections under Article 100(b) EPC were already raised in the opposition proceedings. Therefore, this is not a ground for opposition raised for the first time in the appeal proceedings. The Board therefore agrees with Respondent 1 that the strict requirements laid down in G 10/91 for considering a ground for opposition raised for the first time in the appeal proceedings – in particular the requirement of the patent proprietor's consent – ​​are not applicable in the present case "
• " the admission of a ground of opposition that was not already raised in the notice of opposition but was raised during the opposition proceedings is a discretionary decision (see case law, supra, IV.C.4.1 and IV.C.4.5). This decision rests either with the Opposition Division or with the Board itself, within the powers conferred upon it by Article 111(1) EPC (i.e., in the exercise of its functions within the jurisdiction of the Opposition Division). In the present case, the Board considered it appropriate to exercise its power under Article 111(1) EPC and to decide on the admission of the ground of opposition itself, pursuant to Article 100(b) EPC."
• "the Board concluded that the ground for opposition under Article 100(b) EPC is prima facie relevant and could potentially be decisive for the outcome of the case (G 10/91: Section 2 of the Headnotes"
• "the Board is of the opinion that the objection of [insufficient disclosure] was only raised at a later stage of the proceedings by the specific wording of granted claim 15 and by the amendment to the claim made in auxiliary request 2. In particular, the Board cannot see that the belated raising of the ground of opposition under Article 100(b) EPC could be considered an abuse of procedure."
• "the Board has therefore decided to exercise its discretion to admit the ground of opposition raised by the respondents under Article 100(b) EPC into the proceedings."
• The Board remits the case. 
• The Notice of opposition was filed in 2017.

EPO 

The link to the decision is provided after the jump.

T 1239/24 - No need for pre-emptive attacks on carry-over requests

Key points

• The OD rejected the opposition. The opponent appeals.
• "Any consideration of auxiliary requests in the appeal necessarily presupposes that such claims have become the subject of the appeal proceedings in a permissible manner. However, this could not have been the case at the time the grounds of appeal were filed. The auxiliary requests at issue were not part of the decision under appeal. It is not incumbent upon the appellant-opponent to address, in its grounds of appeal, the auxiliary requests submitted in the opposition proceedings, without knowing whether they will be maintained in the appeal proceedings. 
• The patent proprietor responding to the appeal, on the other hand, is expected to set out ("clearly and concisely", see Article 12(3) RPBA) in its response to the appeal the reasons why the subsidiary claims overcome the objections raised in the grounds of appeal against the main request (see Case Law Book of the Boards of Appeal, 11th edition, V.A.4.3.5.b) and, for example, T 1041/21, Reasons 5.1.4; and T 1690/22, Reasons 2.12). 
• It is in response to a well-substantiated submission of auxiliary requests by the respondent that an appellant is obliged to submit a substantiated response with respect to the issue of inventive step."
• This refers to the rejoinder to be filed by the appellant. 

EPO 

The link to the decision is provided after the jump.

T 1199/25 - Inevitable results

Key points

• G 2/88, point 10 (in the context of second non-medical use claims): "in some cases, the information which the written description actually contains, teaching the carrying out of a process for example, also makes available further information which is the inevitable result of carrying out such teaching [see T 12/81]."
• The EBA continued: "In each such case, a line must be drawn between what is in fact made available, and what remains hidden or otherwise has not been made available."
• Turning to the present case: the opponent argued that "The opposition division had erred in treating the PEG molecular weight as "hidden information". The relevant question was not whether D23a identified the PEG molecular weight as an essential parameter, but whether that feature was objectively and necessarily implied by the disclosure. A feature was part of a disclosure if it was the inevitable consequence of what was expressly described, irrespective of whether the skilled person's attention was specifically directed to it."
• The Board: "the presence of a PEG moiety having an average molecular mass of 1-3 kDa is disclosed because such a liposome is the inevitable consequence of carrying out the method disclosed at page 20, lines 14 to page 21, line 16 and ..."
• "The calculation made by the respondents that the liposome produced comprises PEG of average molecular weight of 2 kDa ... was not disputed by the appellant[,] and the board considers that it is correct."
• Evidence of inherent properties does not need to be prior art. 
• This does not mean that D23a gives basis, in the sense of Art. 123(2) EPC, for specifying a PEG moiety having an average molecular mass of 1-3 kDa as a feature (if D23a is a patent application).
• "For these reasons, D23a, and therefore D23, directly and unambiguously discloses a liposome falling within the definition of claim 1, encapsulating RNA encoding an immunogen."
• I explored the topic in my article in epi Information 4/2020. As discussed therein, the phrase "falling within" distinguishes the test for novelty from the test for Art. 123(2); the phrase "directly and unambiguously discloses" expresses the common element of those two tests.

EPO 

The link to the decision is provided after the jump.

T 0733/24 - Killed by own subsequent patent application

Key points

•  This is a case about sufficiency.
• "The claim is directed to a method for the identification of microbial and non-microbial infectious pathogens in whole blood by mass spectrometry. The pathogens are cultured in the whole blood by incubation and afterwards are centrifuged into pellets and subjected to mass spectrometric identification. In order to remove the particles contained in the body fluid, i.e. in the whole blood, the method further includes "additional steps in order to destroy and remove the body fluid particles". These steps are not further defined in the claim.

  8. In order to carry out the claimed method, the skilled person must hence know, inter alia, with which additional steps the recited destruction and removal of the blood particles can be achieved such that an identification of any microbial and non-microbial infectious pathogen possibly present in the whole blood by mass spectrometry can be achieved."

• "[the application] contains a single hypothetical example in which the sample is whole blood infected by microbes (paragraph [63] of the earliest application). There, it is proposed to destroy and remove the blood particles by firstly separating the pathogens together with the blood particles by centrifugation and then dissolving the pellet in distilled water to destroy the blood particles by osmosis while leaving the microbes intact. 

• "However, this method does not work, as evident from document D9, which discusses, in paragraphs [19] to [22], the teaching in the earliest application. 

• "paragraph [22] of D9 [mentions that] "experiments carried out in the applicant's laboratory with this method of adding distilled water did not succeed in providing sufficiently clean centrifuge deposits, even when the washing and centrifuging processes were repeated a few times. Even if the deposits did not retain a slightly reddish color, superimpositions with human protein signals always interfered with the microbial protein signals from these deposits to such an extent that an identification becomes uncertain" (paragraph [22] of D9)."

• "Therefore document D9 is evidence that the single hypothetical example described for the claimed method in paragraph [63] of the earliest application is unsuitable to identify microbes in infected whole blood, let alone any microbial and non-microbial pathogens in a whole blood sample. In view of this and in the absence of any evidence that the skilled person could have remedied this deficiency by common general knowledge, it must be concluded that the skilled person could not carry out the claimed method without undue burden at the effective filing date of the application."

• D9 is a post published patent application. The proprietor of the patent in suit is the same as the applicant of D9. 

EPO 

The link to the decision is provided after the jump.

T 0195/25 - Partial priority and the shield effect of priority (?)

Key points

• The Board, in the headnote: "When a claim of a patent enjoys partial priority for a specific embodiment, the same embodiment disclosed in a non-patent document published in the priority year cannot be used as starting point for an inventive-step attack against the subject-matter of the claim that does not validly claim priority".
• Compare G 3/93: "1. A document published during the priority interval, the technical contents of which correspond to that of the priority document, constitutes prior art citable under Article 54(2) EPC against a European patent application claiming that priority, to the extent such priority is not validly claimed. 2. This also applies if a claim to priority is invalid due to the fact that the priority document and the subsequent European application do not concern the same invention because the European application claims subject-matter not disclosed in the priority document."
• Hence, the headnote in T 195/25 is surprising because it appears to introduce the 'shield theory' of priority, which was rejected in G 3/93 (as I understand that case). 
• See my blog post of 01.09.2017 (link). 
• See also T 2466/13, issued in 2018, wherein, in translation: "The chamber uses [priority] document Prio01 as a starting point to examine the inventive step of subdomain B of claim 1.") (link)
• Turning to the case at hand, D12 is the PhD thesis of one of the inventors and was published during the priority year, 
• The present Board: " The appellant considers the examples in PhD thesis D12, ... an alternative starting point for assessing inventive step. "
• "Since D12 was published after the filing date of D11, D12 has no impact on the priority date of the patent.
• "However, when a claim of a patent enjoys partial priority for an embodiment, the same embodiment disclosed in a non-patent document published in the priority year cannot be used as a starting point for an inventive-step attack against the subject-matter of the claim that does not validly claim priority.
• This is a new statement of the law, I think.
• "3. ... It has not been contested that the priority is at least partially valid (see G 1/15), i.e. as far as the examples of the patent are concerned 
• The examples are the same between the priority document and the application. Implicitly, the examples are also embodiments of the claim under examination.
• Importantly, the cited examples in D12, the PhD thesis, are the same as in the priority document.
• "In the case in hand, the subject-matter of the examples of non-patent document D12 does not belong to the state of the art within the meaning of Article 54(2) EPC since D12 was published after the priority date of the patent (see point 3. above)."
• This statement departs from the established case law.  Under G 1/15, the priority is "entirely" valid for one part of the claim and "entirely" invalid for the other part of the claim, just as when the claim explicitly recites two alternative embodiments, one with priority and one without ( G2/98)
• The Board: "4.3 This finding is in line with the principles of e.g. T 2073/22 (Reasons 9.6.3 and 9.6.4), T 1482/21 (Reasons 2.4.2) and T 211/06 (Reasons 4.1 and 4.2)."
• Let's check the references.
• T 2073/22: ", the board notes that, as pointed out by the respondent, the appellant explicitly stated in its grounds of appeal (page 30, point 10.96) that it "made no inventive step objection to phenols specifically".  ...  " Therefore, D1 is prior art under Article 54(3) EPC for the subject-matter of claim 1 as granted objected to by the appellant. ". The Board did not examine the patentability of the other subject-matter of the claim of its own motion.
• T 1482/21: "in view of the Board's conclusion on the partial validity of priority as set out above and the limitation of the claimed subject-matter in the new auxiliary request to subject-matter for which priority can be validly claimed...  D24/D27 are not prior art for this subject-matter, since they were published after the filing date of P1 and P2."
• T211/06: "the starting points applied to in the decision under appeal for the purposes of Article 56 EPC are based either on internal art or on a practice argued by the examining division to be known to the skilled person, for which there is no evidence on file that it was available to the public before the priority date." "According to the impugned decision another starting point was based on a so called "laboratory practice" or "common industrial practice" ...  "There is however no evidence on file at all that this "laboratory practice" was made available to the public and concerns state of the art under Article 54(2) EPC. This would be using a subjective starting point, which cannot be objectively assessed, since it is not based on reliable technical information based on evidence as required by Article 54(2) EPC. "
• None of the three cited decisions seems to address the point or support the present Board's position.
• The present Board: "By contrast, T 307/22 (Reasons 3.4.1, 3.4.4 and 3.5.4 to 3.5.5) concerned an embodiment disclosed both in D7, a document published in the priority year, and in priority document D8. It held that the embodiment of D7 could be used as the starting point for assessing inventive step. This is not indicated in the circumstances of the present case. For the reasons given above, only the subject-matter of the prior art within the meaning of Article 54(2) EPC can be used for an inventive-step attack."
• See my post on T 307/22.
• The current Board's remark that "This is not indicated in the circumstances of the present case" seemingly means that T 307/22 is wrong because the current Board analyses the effect of priority differently. 
• The present decision does not refer to G 3/93.

EPO 

The link to the decision is provided after the jump.

T 0712/24 - Change preliminary opinion OD

Key points

• The Board provides an extensive analysis of when, in the Board's view, an OD has discretionary power to hold a submission inadmissible. The Board reaches a conclusion that differs from a (key) statement in the GL. It took me some time to appreciate the decision.
• The decision is in German, and I had to clean up the HTML publication (excess line breaks) before the machine translation went well. 
• The proprietor is the appellant and objects to the decision of the OD to hold AR-1 (and 2) inadmissible. The proprietor filed those requests during the oral proceedings before the OD. The proprietor argues that the requests should have been admitted, "because [the OD's] preliminary opinion on novelty had been favourable to the patent proprietor and [the OD] had changed its view on this matter during the oral proceedings". AR-1 changed the device claims into use claims. The patent was granted with only device claims. The use claim concerns the use of the device "zum sexuellen Stimulieren eines Bereichs im Inneren einer Vagina".
• The OD held the requests inadmissible "for lack of prima facie allowability in view of Article 53(c) EPC".
• "The Board ... notes that ... auxiliary requests 1 and 2 ... were intended to overcome the objections of lack of novelty over D2 and D3, which had already been raised in the notice of opposition."
• Accordingly, the proprietor's rights under Article 113(1) EPC were not in issue. 
• However, the proprietor argued that the ARs were not "late filed" in the meaning of Art. 114 (and Rule 116) such that the OD had no power to hold them inadmissible.
  
• I think that Article 123(1) is the relevant provision for amended claims; see e.g. T 966/17, but the current Board gives reasons why it referred to Article 114(2) EPC. Amended claims were seen as 'facts' in earlier decision T 1776/18 (with the same legal member; from 2022), and my comments on that decision can be found here - link. 
• The Board, in translation: "The prerequisite for discretion under Article 114(2) EPC is that the submission in question is “late”. "
• The Board: "Whether a submission is late within the meaning of this provision depends exclusively on the point in time at which it was made. In opposition proceedings, objections and evidence submitted or filed by an opponent after expiry of the opposition period under Article 99(1) EPC, as well as sets of claims or evidence filed by a patent proprietor after expiry of the period under Rule 79(1) EPC, are generally to be regarded as late-filed within the meaning of Article 114(2) EPC"
• Note that the Board's phrase "within the meaning of this provision" (i.e., Art. 114 EPC) implies "without regard to Article 113(1)".   
  
• Understood that way, I can agree with the Board's statement (see my post on T 098/19), leaving Rule 116 aside for the moment.
• The Board:  "The reason why a party made a submission only after the aforementioned points in time is irrelevant to the question of whether the deciding department of the European Patent Office has discretion. The question whether a department has discretion within the meaning of Article 114(2) EPC must be distinguished from the question of the criteria according to which that discretion is to be exercised and how those criteria are to be applied in an individual case".
• "Considerations as to whether new submissions were, for example, permitted as an immediate reaction to a change in the subject of the proceedings are irrelevant to whether there is discretion as to admissibility; they concern exclusively the question of how that discretion is to be exercised"
• This confirms that the Board considers that the OD has a "discretion", even if a decision to hold the submission inadmissible violates Article 113(1) EPC (namely in the case of an "immediate reaction to a change in the subject of the proceedings"). This makes sense under the separate treatment of Article 113(1) and Article 114(2). 
• In the case at hand, the OD changed its view on novelty during the oral proceedings and decided that D2 was novelty-destroying.
• The Board: "in the predominant recent case law of the Boards, a change in the Opposition Division's preliminary opinion is not, in itself, regarded as a reason why the Opposition Division should have no discretion when admitting newly filed sets of claims" (after an extensive review). 
• However, the Guidelines state that E-VI, 2.2.2 (current version, 2026): "the examining or opposition division departs from a previously notified opinion: for example, contrary to its preliminary opinion set out in the annex to the summons, the opposition division concludes during oral proceedings that an objection prejudices the maintenance of the patent.  In these examples, a request for amendment made by the applicant or proprietor in response cannot be rejected as late-filed."
• "The Board points out, pursuant to Article 20(2) RPBA, that the interpretation of the EPC adopted in the present decision differs [from the] Guidelines for Examination, point E-VI 2.2.2.  ... In the Board's view, the statements in point E-VI 2.2.2 of the Guidelines concerning Rule 116(2) EPC and the existence of discretion as to admissibility of the Opposition Division are contrary not only to the present decision but, as explained above, also to the predominant recent case law of the Boards."
• The passage in the Guidelines interprets Rule 116(2), second sentence, as it refers to Rule 116(1), fourth sentence, in particular the final clause thereof: "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." 
• A question is, therefore, whether the passage in the GL correctly interprets Rule 116.
• In fact, the issue is twofold: (1) whether a change from the preliminary opinion is a change of the subject of the proceedings in the sense of Rule 116, and (2) whether, for any change of the subject of the proceedings (the GL give more examples), the OD is obliged to admit new facts. 
• Question (1) is answered above: "a change in the Opposition Division's preliminary opinion is not, in itself, regarded as a reason why the Opposition Division should have no discretion when admitting newly filed sets of claims"
• The travaux préparatoires to Rule 116 can be found, effectively, in the Notice in OJ 1995 p.409. The Notice says that "The procedure under Rule71a is described in more detail in revised Guidelines E-III, 6 and 8.6." (see here for the GL text as of 1995). The statement "the examining or opposition division departs from a previously notified opinion" was not yet included in the GL then. It was included in the GL 2007, E-III 8.6, referring to T 273/04, r.5 (2006). The reasoning in that decision is plain and simple. 
• Regarding point (2), the Board is of the view that the GL interpret Rule 116 incorrectly: "Rule 116(2) EPC ... does not restrict the discretion available to the Opposition Division under Article 114(2) EPC (see T 1776/18, Reasons 4.7.8)."
•  The Board does not seem to give substantive reasons for that conclusion in the present decision, other than by referencing T 1776/18 (same legal member)
• I commented on T 1776/18 before (link). Cited point 4.7.8 is about Rule 116(2). The relevant reasoning about Rule 116(1), fourth sentence, is in point 4.6.8: "the word "admitted" expresses the exercise of discretionary power, and the phrase "on the grounds" indicates a criterion for exercising this discretionary power. Rule 116(1), fourth sentence, EPC thus confirms that a change in the subject of the proceedings must be taken into account by the Opposition Division in the course of exercising its discretion." 
• That reasoning in T 1776/18 seems to address question (2). As I understand it, the TBA reasons that the word "admitted" assumes the existence of a discretionary power (also) in the event that the subject of the proceedings has been changed. This may be correct if we understand "discretionary" as "to be exercised in compliance with Article 113". 
• The French version of Rule 116(1), fourth sentence, seems the most helpful: "De nouveaux faits ou preuves présentés après cette date peuvent ne pas être pris en considération, à moins qu'il ne convienne de les admettre en raison d'un changement intervenu dans les faits de la cause." - unless it is appropriate (my translaton of  'convienne' ) to admit newly submitted facts because of a change in the circumstances of the case; the term 'convienne' more clearly permits using a plurality factors to determine whether it is appropriate to admit the newly asserted facts. 
• The Board notes that: " Point E.VI.2.2.2 states that amendments filed before the point in time specified in Rule 116(1) EPC generally cannot be regarded as late-filed."
• A third question is whether the Board's view, that "Rule 116(2) EPC ... does not restrict the discretion available to the Opposition Division under Article 114(2) EPC", also means that GL are incorrect in stating that "amendments filed before the point in time specified in Rule 116(1) EPC generally cannot be regarded as late-filed" (and be held inadmissible?).
• This hinges on question (3): what is the status and meaning of the clause in Rule 116 that "New facts and evidence presented after that date need not be considered". Is the reference to that date in Rule 116(1), fourth sentence, first clause, meaningless, in that the situation is before and after the date the same?
• A related question is whether Rule 116 and/or the GL can limit the OD in how they exercise their power under Article 114.
• The proprietor apparently did not invoke the principle of (non) venire contra factum proprium (see, e.g., recently J 2/25).
• 
  
• On medical methods
• For the perceived issue under Article 53(c), the OD cited as evidence D2, a patent application by the current proprietor, in which the use of the device was allegedly described as therapeutic. Consultation of D2 reveals that the term 'therapeutic ' was used only when D2 summarises what earlier prior art teaches in terms of known devices. Moreover, the use of D2 - namely, the stimulation of the clitoris - seems different from that of the current claims. 
• The patent is about "a stimulation device [that] can be introduced into a human body, in particular into a vagina or a rectum, and comprises a pressure-field generating device for stimulating a region to be stimulated inside the human body" 
• The Board notes, in connection with a different auxiliary request, that "Eine therapeutische Wirkung kann bei der beanspruchten sexuellen Stimulation nicht ausgeschlossen werden." 
• Perhaps we will one day have substantive case law on the point in another case; there is enough patent litigation in the technical field at issue. 




EPO

The link to the decision is provided after the jump, as well as the machine translation.

T 0110/25 - (II) Deleting figure label violates Art. 123(2)

Key points

• The proprietor withdrew the main request after the Board had announced its conclusion that the amendment of Figure 6 (by deleting the label of the vertical axis) in the grant procedure violated Article 123(2). Nevertheless, the Board's reasons can be inferred from the decision, to a degree. 
• The Board, in translation: "39. The question of whether the deletion of the ordinate label in Figure 6 prior to the grant of the patent infringes Article 123(2) or Article 100(c) EPC or is permissible as a correction within the meaning of Rule 139 EPC and therefore does not lead to an inadmissible extension was the subject of the contested decision (point 11, pages 4 to 7) and was also raised again in the appeal."
• " In its appeal, the appellant [opponent] argued that the removal of the original ordinate label in Figure 6 violated the prohibition of inadmissible extension (Article 123(2) in conjunction with Article 100(c) EPC). Figure 6 was essential for assessing inventive step. The deletion did not serve as a correction but enabled alternative technical statements, which constituted an inadmissible technical extension and conferred an unfair advantage on the patent proprietor. The deletion eliminated the original reference of the diagram to the absolute histamine degradation capacity, but no correct indication replaced the deleted ordinate label. This enabled alternative statements in the eyes of a person skilled in the art"
• " In its appeal, the appellant argued that the removal of the original ordinate label in Figure 6 violated the prohibition of inadmissible extension (Article 123(2) in conjunction with Article 100(c) EPC). Figure 6 was essential for assessing inventive step. The deletion did not serve as a correction but enabled alternative technical statements, which constituted an inadmissible technical extension and conferred an unfair advantage on the patent proprietor. The deletion eliminated the original reference of the diagram to the absolute histamine degradation capacity, but no correct indication replaced the deleted ordinate label. This enabled alternative statements in the eyes of a person skilled in the art"
• The auxiliary request seeking to address the issue is not admitted, as it was filed late.
• "The [proprietor's] assertion that it has never been explained what new technical teaching was introduced by deleting the ordinate label in the original Figure 6 is also incorrect. As already stated several times, the appellant argued in its appeal that deleting the ordinate label in the original Figure 6 eliminated, rather than correcting, the reference to histamine degradation capacity. The bar chart without ordinate labels allows for several technical interpretations that differ from the original information because the figure descriptions on pages 10 and 19/20 are contradictory both internally and in relation to Figure 6. Specifically, the appellant argued that, contrary to their previous meaning, the groups "HIT" and "no symptoms" could be related to sensitivity, and the group "symptoms" to specificity. The respondent readily admitted that these alternative technical statements, arising from the interpretation of Figure 6, were relevant to the inventive step. However, the respondent denied these alternative interpretations of both the original and granted Figure 6, and thus also the existence of a "new technical teaching." It insisted that the original Figure 6, viewed in conjunction with the original application as a whole, allowed for only one interpretation. 
• Not mentioned, but likely highly relevant is G 2/21.

EPO 

The link to the decision is provided after the jump.