15 Apr 2019

T 0516/14 - No interruption for opponent

Key points
  • " The insolvency administrator of [German] opponent 1 submitted that with the opening of insolvency proceedings over the assets of opponent 1, the appeal proceedings had to be interrupted according to § 240 S1 ZPO, German law." 
  • The Board points out that in proceedings before the EPO, the applicable law is the EPC. 
  • " Rule 142(1)(b) EPC stipulates that proceedings before the EPO are to be interrupted "in the event of the applicant for or proprietor of a patent, as a result of some action taken against his property, being prevented by legal reasons from continuing the proceedings". "Neither this nor any other provision mentions an opponent in opposition proceedings." 
  • " The application of Rule 142(1)(b) EPC to an opponent by analogy is not justified either. Generally, in opposition proceedings, the legal situation for an opponent is different from that of a patent proprietor. While for a patent proprietor the irremediable loss of its patent is at stake, the opponent, if unsuccessful, could still bring an action for revocation before national courts." 
  • The Board points out that the insolvency administrator becomes, under German law, the party to the proceedings ex officio "as of 14 July 2016. This provided the administrator with enough time to become acquainted with the case and prepare for the oral proceedings scheduled on 25 January 2019" 

EPO T 0516/14 - link


Reasons for the Decision
1. The appeals are admissible.
2. The invention
The invention relates to a device for producing a three-dimensional tomographic mammography image, with the general objective of making possible an early detection of breast cancer.
The device is generally depicted in figure 2A, reproduced below.
FORMULA/TABLE/GRAPHIC


It comprises a gantry frame (206) movable by a motor and to which a source (210) of cone-beam radiation (C) and a flat panel detector (208) are attached, and a support comprising a table (202) on which a patient rests while projection images of a breast (B) are taken. The table has a through hole (204), through which the breast descends. The support further comprises a breast holder (205) configured to pull the breast out of the chest wall and form it into a cylindrical shape. According to an embodiment depicted in figure 7D reproduced below, the breast holder comprises two halves 205a and 205b which are pressed together to pull and form the breast as claimed. A piston (208) may be provided to push the nipple towards the chest wall (page 5, lines 23 and 24).
FORMULA/TABLE/GRAPHIC
In use, the breast is positioned between the source of radiation and the flat panel detector while the motor rotates the gantry frame around an axis passing through the breast so that the breast remains in the path of the radiation emitted by the source and projection images are taken by the flat panel detector. A reconstruction and processing module forms a three-dimensional tomographic mammography image from the projection images.
According to the patent, the three-dimensional tomographic mammography image obtained with the claimed invention makes it possible to better detect breast cancer (paragraphs [0025] to [0032] in particular).
3. Although having been duly summoned by communication dated 8 November 2018, opponent 1 was not present at the oral proceedings as announced by letter dated 22 January 2019. In accordance with Rule 115(2) EPC and Article 15(3) RPBA, the proceedings were continued without opponent 1, who is treated as relying only on its written case.
4. Interruption of appeal proceedings
The insolvency administrator of opponent 1 submitted that with the opening of insolvency proceedings over the assets of opponent 1, the appeal proceedings had to be interrupted according to § 240 S1 ZPO, German law.
In proceedings before the EPO, the applicable law is basically codified in the EPC. Interruption of proceedings is the subject of Rule 142 EPC.
Rule 142(1)(b) EPC stipulates that proceedings before the EPO are to be interrupted "in the event of the applicant for or proprietor of a patent, as a result of some action taken against his property, being prevented by legal reasons from continuing the proceedings".
Neither this nor any other provision mentions an opponent in opposition proceedings. The application of Rule 142(1)(b) EPC to an opponent by analogy is not justified either. Generally, in opposition proceedings, the legal situation for an opponent is different from that of a patent proprietor. While for a patent proprietor the irremediable loss of its patent is at stake, the opponent, if unsuccessful, could still bring an action for revocation before national courts.
According to German law (Schulte, Patentgesetz mit EPÜ, 9. Auflage, Einleitung, 190) when insolvency proceedings are opened, the insolvency administrator is entrusted with the administration of the insolvency assets which may include an opposition, as in the present case. As a consequence, for this appeal, the insolvency administrator became a party to the proceedings, acting for opponent 1 ex officio as of 14 July 2016. This provided the administrator with enough time to become acquainted with the case and prepare for the oral proceedings scheduled on 25 January 2019.
In conclusion, the Board sees no compelling reason for an interruption and, following also decision T 1533/07 (point 2 of the Reasons), decides to continue the appeal proceedings.
5. General objections
The opponents generally referred to all objections and arguments presented in the opposition proceedings.
In accordance with what was pointed out already in the communication accompanying the summons to oral proceedings, such objections lack substantiation. In particular, such general references do not deal clearly and concisely with the reasons in the impugned decision.
Hence, those objections do not meet the requirements of Article 12(2) RPBA and are disregarded under Article 12(4) RPBA.

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