T 1534/16 - Prior use and withdrawn opposition

Key points

• In this opposition appeal, the opponent and the intervener had asserted a public prior use, and had subsequently withdrawn the opposition (and intervention).
• The patentee had defended the claims by casting doubts on whether the prior use was public, or whether an obligation to maintain secrecy had been in place.
• " The Board, regarding the appellant's doubts as justified and considering that further investigations would require the co-operation of the opponent and/or intervener, who have withdrawn their oppositions and their intervention [], concludes that the allegations of prior use are to be disregarded."

	T 1534/16 - link

Reasons for the Decision

1. Prior uses
The opponent and the intervener submitted a plurality of allegations of prior use before their respective oppositions were withdrawn.
The appellant replied by raising doubts concerning the public availability of the installations in accordance with the alleged prior uses, in particular by referring to the presence of an obligation to maintain secrecy.
The Board, regarding the appellant's doubts as justified and considering that further investigations would require the co-operation of the opponent and/or intervener, who have withdrawn their oppositions and their intervention (see Case Law of the Boards of Appeal, 8th edition 2016, IV.D.2.2.9 (c)), concludes that the allegations of prior use are to be disregarded.

2. Exclusion from file inspection
During the written proceedings before the Board, documents E48, E48a, E49, E51, E52, E53 and E54 filed by the appellant before it withdrew its opposition were provisionally excluded from file inspection (see communication dated 28 February 2018) at the request of the appellant (patentee). The Board, considering that the opponent and intervener had explicitly agreed by letters of 6 March 2018 to the appellant's request and being satisfied that the documents in question do not serve the purpose of informing the public about the patent in suit, concludes that the above-mentioned documents should remain excluded from file inspection pursuant to Rule 144(d) EPC.