T 2335/12 - Limited lab resources in house

Key points

• In this opposition appeal, the title of the patent is "Animal product free media and processes for obtaining a botulinum toxin", and the patentee is Allergan Inc. Allergan is of course the major producer of Botox (r) and the active ingredient of that is the botulinum toxin.
• Patentee filed an experimental report late. 
• The Board: "Regarding the delay in submitting the evidence, the board is not persuaded by the [patentee's] arguments that it was caused by unsuccessful attempts to contract a university laboratory to carry out comparative tests and by limited resources for performing the tests in-house, since Allergan Inc. [the patentee ] is one of the largest manufacturers of [botulinum neurotoxin]BoNT and should have sufficient in-house capacities to perform a standard test for assessing the BoNT production of  [C. botulinum bacteria]  grown on different commercially available fermentation media." 

Reasons for the Decision

Admission of evidence filed with letter dated 29 July 2015 (Articles 114(2) EPC and 13(1) RPBA)

1. Document D32 was submitted with the appellant's [patentee,  Allergan, Inc.]  letter dated 29 July 2015, i.e. more than two and a half years after the filing of it's statement of grounds of appeal. It is therefore late-filed and its admission is at the board's discretion (Articles 114(2) EPC and 13(1) RPBA). In this context, account may inter alia be taken of whether or not a convincing case has been made as to why the evidence could not have been filed earlier and why it is prima facie relevant.

2. Regarding the delay in submitting the evidence, the board is not persuaded by the appellant's arguments that it was caused by unsuccessful attempts to contract a university laboratory to carry out comparative tests and by limited resources for performing the tests in-house, since Allergan Inc. [the patentee company] is one of the largest manufacturers of BoNT and should have sufficient in-house capacities to perform a standard test for assessing the BoNT production of Clostridium botulinum (hereinafter "C. botulinum") grown on different commercially available fermentation media.