T 0633/14 - Dictionary definition and right to be heard

Key points

• The patent proprietor (appellant) complained about a substantial procedural violation because the OD referred in its written decision to the Merriam-Webster dictionary  of the word "thus" , that dictionary entry had not been discussed during the oral proceedings.
• " In order to come to a decision about extension of subject-matter, the Opposition Division had to interpret the wording of the description and the meaning of the word "thus". After the debate in the oral proceedings, they were entitled to interpret the specification and to argue - without any dictionary support - that the word "thus" logically connected both sentences. Hence, the dictionary entry was only cited in the written decision in support of a conclusion already reached during oral proceedings []. Therefore, the reference to the Merriam-Webster dictionary in the decision, having only a supporting but not a decisive function, neither leads to a violation of the right to be heard, nor to a substantial procedural violation. " 
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EPO T 0633/14 -  link

2. Request for reimbursement of the appeal fee

The main objection resides in the fact that in interpreting a particular passage comprising the word "thus", the Opposition Division referred [in its written decision] to a Merriam-Webster dictionary entry which had not been discussed during the oral proceedings.

The issue of whether the second sentence (which discloses the parameter ranges) was logically or causally linked with the first sentence (which refers to the "above described cell pattern") was discussed during the oral proceedings (point 2.1 of the minutes), including page 14, lines 7-9, i.e. the particular passages with the word "thus"; this much is undisputed.

Furthermore, in order to come to a decision about extension of subject-matter, the Opposition Division had to interpret the wording of the description and the meaning of the word "thus". After the debate in the oral proceedings, they were entitled to interpret the specification and to argue - without any dictionary support - that the word "thus" logically connected both sentences. Hence, the dictionary entry was only cited in the written decision in support of a conclusion already reached during oral proceedings - after a detailed discussion with the parties regarding the contextual interpretation of the relevant passage.

Therefore, the reference to the Merriam-Webster dictionary in the decision, having only a supporting but not a decisive function, neither leads to a violation of the right to be heard, nor to a substantial procedural violation. Consequently, the request for reimbursement of the appeal fee has to be rejected for that reason alone. Moreover, the requirements for reimbursement of the appeal fee pursuant to Rule 103(1)(a) EPC are also not met because the appeal was not deemed allowable (see below).

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The only support for these parameter ranges is on page 14, lines 3-9 of the published PCT application, which in context read as follows:

"The above-described cell pattern permits each of the inflow and outflow sections of frame 12 to expand to a diameter within a range of deployed diameters, while retaining constriction region 17 at a substantially constant diameter. Thus, for example, outflow diameter D0 may range from 30 to 55 mm, while inflow diameter DI may vary from 19 to 34 mm".[] 

3.1.2 The cell-pattern

The Board agrees with the Opposition Division in that, in the present context, the word "thus" indicates that the content of the sentence is a consequence of the preceding sentence.

The preceding sentence makes explicit reference to the particular "above described cell pattern" which is defined on page 12, lines 23-29 as follows:

" ..the frame comprises a plurality of cells having sizes that vary along the length of the prosthesis. As indicated by dotted lines a, b and c, each cell comprises two zig-zag structures having unequal-length struts, wherein the vertices of the zigzags are coupled together."

The explicit wording used thus conveys a logical and functional relationship between the features of the cell pattern and the diameter ranges claimed.