T 2028/16 - New evidence prior use in appeal

Key points

• The Board admits new evidentiary documents which support the public prior use that was already asserted before the OD which were filed with the Statement of grounds. The reason is that the OD had found, after a witness hearing, that the devices at issue were delivered to the armies of Netherlands and Italy (without secrecy agreement, according to the OD) before the priority date, but that it was not proved that these devices exhibited a specific feature.
• The filing of the new documents "ist somit bei der nächstmöglichen Gelegenheit erfolgt und ist auch inhaltlich als sachdienliche Reaktion auf die Schlussfolgerung" of the OD.
• The documents are furthermore prima facie highly relevant to show that the prior use devices exhibited the feature at issue.
• Moreover, the new documents do not involve a new case. “Durch das Einreichen dieser Beweismittel entsteht kein sachlich bzw. patentrechtlich gänzlich neuer Streitgegenstand, sondern es werden lediglich weitere Beweismittel für die Behauptung vorgelegt, dass 1998 und 1999 Periskope PERI-RTNL-80 mit zugehörigen Absenkvorrichtungen an die deutsche Bundeswehr geliefert worden seien, wie die Beschwerdeführerin und die Zeugen im erstinstanzlichen Verfahren behauptet haben.”
  
  
• The Board does no doubt that the weapon system at issue was delivered to the armies without secrecy agreement. However, this does not amount to a public prior use, according to the Board (contrary to the OD), because military weapon systems are typically not accessible to the general public.
• “Die Auslieferung der Panzerhaubitzen mit dem Periskop PERI-RTNL-80 und der zugehöriger Absenkvorrichtung ohne Vereinbarung einer Geheimhaltungspflicht führt für sich genommen noch nicht zur Offenkundigkeit. Die Annahme einer offenkundigen Vorbenutzung durch die Auslieferung setzt vielmehr eine hinreichende Wahrscheinlichkeit voraus, dass beliebige Dritte und damit auch Fachkundige das Periskop der Panzerhaubitzen untersuchen und dadurch Kenntnis von den konstruktiven Merkmalen der dort eingesetzten Optikaufnahme erhalten konnten. Nach der Lebenserfahrung sind Waffensysteme wie Panzerhaubitzen der Öffentlichkeit nicht zugänglich und werden auch zur Wahrung von militärischen Geheimhaltungsinteressen seitens des Militärs nicht öffentlich gemacht (siehe ebenso z. B. T 1069/15”).
• The Board finds that soldiers have a secrecy obligation and the weapon system was not accessible to the public. So the delivery to the army was not a public prior use.
• 
  

T 2028/16 - link

decision text omitted.

T 0232/14 - Storing ranges in database

 Key points

• This is an appeal about the refusal of a patent application directed to "method for identifying manufactured items in containers". The appeal was filed in 2014, decision 06.10.2020. The decision is given publication code [B]. The claimed method boils down to collecting items each having a unique item number in a container, wherein the container has a container number, and storing in a database the item numbers collected in each container. The distinguishing feature is that ranges of item numbers contained in each container are determined and stored in the database.
• “The invention relates to the identification of specially taxed or branded manufactured items (also called units or cartons, e.g. cigarette cartons), packaged into containers (also called cases). Identification allows products to be authenticated as genuine, tracked and traced, which helps to detect contraband and counterfeit products”. 
• “Conventional identification systems stored an individual record of the identifier for each item in the container together with its associated container identifier (see Table 1). This required a large amount of data storage. The invention essentially replaces the individual records with ones representing any contiguous ranges of identifiers for items packed in a container. Since items are generally packed as they are produced, there are fewer ranges than items and thus fewer records in the database.”

• The Board: “Even if the "determining of ranges of unit identifiers" achieved a technical effect, such as reducing data storage and data bandwidth requirements, it is a matter of routine design for the skilled person, a software programmer or a database expert, based on common general knowledge to store the first and the last element of a list of items, instead of the whole list.”
• However, the Board first judges that the “using ranges of unit identifiers to label a number of (consecutive) unit identifiers of manufactured items is, at the level of generality at which it is claimed, on the business side of the line between technical and non-technical subject-matter”

EPO Headnote


The Board judges that using ranges of unit identifiers to label a number of (consecutive) unit identifiers of manufactured items is, at the level of generality at which it is claimed, on the business side of the line between technical and non-technical subject-matter (see e.g. T 144/11 - Security rating System / SATO MICHIHIRO, points 2.1, and 3.6 to 3.9).(See point 2.5 of the reasons)

The ranges of unit identifiers do have a meaning for the business person. They correspond to batches of units produced on a production line. (See point 2.6 of the reasons)

Even if the "determining of ranges of unit identifiers" achieved a technical effect, such as reducing data storage and data bandwidth requirements, it is a matter of routine design for the skilled person, a software programmer or a database expert, based on common general knowledge to store the first and the last element of a list of items, instead of the whole list. (See point 2.9 of the reasons)

T 0232/14 -  link

decision text omitted.

T 2049/16 - Review of decision to admit

 Key points

• D2 was filed by the opponent one month before the oral proceedings before the OD and admitted then. Patentee argues that the OD should not have admitted the document because its late filing constituted a tactical abuse of proceedings.
• “The board is not convinced that the opponent's (now: respondent's) behaviour can be deemed an abuse of proceedings. As undesirable as it may be, the filing of additional, allegedly relevant prior art one month before oral proceedings is not uncommon, not least because this is a commonly set time limit for filing written submissions and because parties often start preparing for oral proceedings shortly before that time limit.”
• “The board is not aware of any explicit legal basis that would make it possible to retroactively exclude evidence that has been admitted into the proceedings and decided upon by the department of first instance. In this respect, the board shares the opinion expressed in decision T 617/16”
• See this post here with comments of readers.
• “However, it could be argued that the opposition division's decision to admit document D20 is part of the decision under appeal and as such is part of the appeal under Article 12(2) RPBA 2020 and open to review.”
• “It is doubtful whether the Enlarged Board's statement [ in G7/93 about the Board overruling discretionary decisions of the first instance proceedings] provides a sufficient basis for the possibility, let alone the obligation, for a board to review an opposition division's discretionary decision to admit a late-filed piece of prior art it considered relevant.”
• “The assertion that the late filing of document D20 was an intentional abuse of proceedings does not lead to a different conclusion. This assertion is a mere allegation: as already mentioned above, the board cannot see any clear evidence for an abuse of proceedings. And even if there had been an abuse of proceedings, it is highly questionable, especially in view of Article 114(1) EPC, that the opposition division, after having found the document to be prima facie relevant, should have simply ignored the document and maintained a patent which it considered to be prima facie invalid. There are other, better ways to deal with such a situation, such as the postponement of oral proceedings and a decision on apportionment of costs under Rule 88(1) EPC.”
• Practice point: if you need more time as patentee, request a postponement and if appropriate a cost apportionment. 
• “In summary, the board is of the opinion that document D20 cannot be disregarded in the appeal proceedings. As a consequence, the board has dealt with the novelty objection based on this document”
  
  
• As to whether to admit documents filed by the Rule 116 date: “ the need to avoid the maintenance of European patents which are invalid justifies, in first-instance proceedings, the admittance of documents that, in the opposition division's view, are prima facie relevant.”
  
  
• Note 19.02.2021: see also T 1348/16 where the Board decided the OD's decision to admit D13 filed during the oral proceedings.
  

• EPO T 2049/16 -  link

3. Exclusion of document D20

Document D20 was filed by the opponent (now:

respondent) in a letter received at the EPO on 6 May 2016, i.e. one month before the oral proceedings before the opposition division, which took place on 7 June 2016.

T 0398/19 - Open-ended parameter features

 Key points

• Claim 1 is directed to a porous material specified inter alia by having a specific surface area of 40 m2/g. A high specific surface area is a desirable property for the material at issue. Clearly, the patent does not give examples over the entire open-ended range. The open-ended range includes by definition compositions that are currently impossible to prepare.
• The opponent refers to  T 1697/12 and T 0113/19 and the German decisions X ZR 32/17 and X ZR 34/17.
• The Board notes that the patentee declared in writing that the patent is limited to compositions having a specific surface area in the same order of magnitude as illustrated in the patent and as can be achieved using the steps of the method claim of the patent. 
• The Board, in translation from French: “For the Board, it is therefore clear that specific surface area [] values very far from the values specifically disclosed do not form part of the claimed invention; this is therefore well limited to the contribution of the disclosure of the invention compared to the existing state of the art.”
• The Board, “The Board is further of the opinion that the present case does not concern a new preparation of a known composition but a new class of mixed oxides characterized by a new combination of parameters having structural implications. Consequently, it can no longer follow the conclusions of decisions X ZR 32/17 ([headnote 1a and 1b]) and X ZR 34/17 (paragraphs 29 and 30 of the reasons) of the Federal Court of Justice of Germany.” 
• The reference for  X ZR 32/17 is to the headnote about sufficiency of that decision.  (link)
• The Board indicates that they follow T 0113/19 (point 2.1 i), T 1018/05 (point 2.3), T 1697/12 (point 5.5.5),  T 0624/08 (point 3.2.2) and consider that T 1697/12 concerns a different case. 4

T 0398/19 -  https://www.epo.org/law-practice/case-law-appeals/recent/t190398fu1.html

decision text omitted

T 0693/17 - No attacks admitted

 Key points

• The opponent appeals. Board 3.2.07 decides not to admit any of the objections based on Art.12(4) RPBA 2007.
• As a comment, Art. 12(4) RPBA 2007 refers to  "the power of the Board to hold inadmissible facts, evidence or requests which could have been presented or were not admitted in the first instance proceedings" and does not refer to 'objections'.
• The opponent raises an Art. 123(2) objection in the Statement of grounds. The Board: “This objection is not dealt with in the appealed decision ... The appellant [opponent]  acknowledged at the appeal oral proceedings that the above objection was not explicitly raised at the oral proceedings in opposition. ... The Board notes that it is the party's responsibility to present their case and to submit promptly all their objections. ”
• “The Board concludes therefore that the above objection of added subject-matter could and should have been maintained during the oral proceedings in opposition and therefore exercises its discretion pursuant to Article 12(4) RPBA 2007 by not admitting this objection into the appeal proceedings.”
• The Board also does not admit the novelty attack based on D1. The opponent had only contested novelty over D3 for the request at issue during the oral proceedings before the OD. The Board: “The Board cannot follow the argument of the appellant, that the present objection should be admitted into the proceedings because the lack of novelty in view of D1 was not pursued at the oral proceedings in opposition only for reasons of procedural economy, since the opposition division considered D1 not to deprive novelty of the subject-matter of claim 1 according to the initial main request. ... The Board notes that the fact that the decision does not deal with D1 is solely the consequence of the appellant's own procedural strategy. Had the appellant raised the objection at the oral proceedings, the opposition division would necessarily have dealt with it in the decision under appeal.
• The Board also does not admit the inventive step attack because: “The Board notes that the technical problem identified by the appellant in opposition proceedings was a different one, ” So the same combination of documents (D1+D3) was used for the inventive step attack before the OD.
• “The inventive step attacks starting from D3 submitted in the appeal proceedings differ therefore substantially from the inventive step argumentation brought forward in opposition proceedings. No reason why these new lines of argument are presented for the first time in appeal proceedings has been indicated by the appellant, nor is it apparent to the Board.”
• So even 'new lines of arguments' in the Statement of ground can be held inadmissible under Art. 12(4) RPBA 2007, according to this Board.

 
• Finally, “the Board notes that, since none of the objections and lines of argument of the appellant are admitted into the proceedings, as also acknowledged by the appellant at the oral proceedings before the Board, there are no admissible reasons for allowing the appeal or for remitting the case to the opposition division.”

EPO T 0693/17  - https://www.epo.org/law-practice/case-law-appeals/recent/t170693eu1.html

(decision text omitted)

T 0492/16 - Not mentioning Art. 11 RPBA

 Key points

• This is an examination appeal. “Lack of novelty over the disclosure in document D1 was the sole reason given in the decision under appeal for not allowing the main request. The board has reviewed this finding. The examining division has not taken an appealable decision on any other patentability requirement with respect to the set of claims of the main request. ”
• This is of course nothing unusual. Nevertheless the Board remits the case to the Examining Division. The Board does not expressly identify any 'special reasons' for remitting as specified by Art. 11 RPBA 2020. In the decision, the Board directly refers to Art. 111(1) EPC as giving the Board a discretion to remit without any mention of Art. 11 RPBA 2020. 
• The applicant had requested the remittal, so that could be the special reason for remitting.

https://www.epo.org/law-practice/case-law-appeals/recent/t160492eu1.html 

Remittal - Article 111(1) EPC

14. Pursuant to Article 111(1) EPC, following the examination as to the allowability of the appeal, the board will decide on the appeal and, in this respect, it may either exercise any power within the competence of the department which was responsible for the decision under appeal or remit the case to that department for further prosecution.

15. Lack of novelty over the disclosure in document D1 was the sole reason given in the decision under appeal for not allowing the main request. The board has reviewed this finding. The examining division has not taken an appealable decision on any other patentability requirement with respect to the set of claims of the main request. Accordingly, in line with the appellant's request, the board decides to remit the case to the examining division for further prosecution.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the examining division for further prosecution on the basis of the set of claims of the main request filed with the appellant's letter dated 7 October 2019.

T 1861/17 - The subjective problem

Key points

• The present Board emphasizes that the objective technical problem can only be formulated on the basis of the distinguishing features in view of the closest prior art / suitable starting point document. 
• The Board thereby departs from e.g. T 0606/99 which had held that "Dabei ist zunächst von der im Streitpatent formulierten Aufgabe auszugehen. Erst wenn festgestellt wird, daß die dort gestellte Aufgabe nicht gelöst ist, muß untersucht werden welche andere Aufgabe objektiv bestand (siehe z. B. T 246/91 oder T 495/91)."
• The present Board: “ sollte die Formulierung dieser "objektiven Aufgabe" nach Auffassung der Kammer regelmäßig erst nach Festlegen des nächstliegenden Stands der Technik erfolgen”.
• As a comment, historically indeed the objective technical problem is 'reformulated' but in my view it needs to be formulated only once, namely on the basis of the distinguishing features and the technical effects that are made plausible and derivable for said features in the application as filed (see T 1/80, hn.II, the very first decision of the Technical Boards of Appeal, cf. Szabo 1986). T1/80 concerned a case wherein the applicant made a technical effect credible in appeal by filing comparative results. 

T 1861/17 - https://www.epo.org/law-practice/case-law-appeals/recent/t171861du1.html 

3.4 Obwohl in der Rechtsprechung bisweilen bei der Ermittlung der objektiven technischen Aufgabe zunächst grundsätzlich von der im Patent genannten Aufgabe ("subjektive Aufgabe") ausgegangen wird (siehe z.B. T 246/91, Gründe 4.4; T 495/91, Gründe 4.2; T 606/99, Gründe 5.3.1 und die nachfolgenden Entscheidungen, die sich darauf berufen), sollte die Formulierung dieser "objektiven Aufgabe" nach Auffassung der Kammer regelmäßig erst nach Festlegen des nächstliegenden Stands der Technik erfolgen. Nur auf der Basis der Unterscheidungsmerkmale im Vergleich zum nächstliegenden Stand der Technik (geeigneten Ausgangspunkt) kann ja nach dem etablierten Aufgabe-Lösungs-Ansatz überhaupt die objektive technische Aufgabe bestimmt werden (siehe z.B. R 9/14, Gründe, 2.1.1). Die Patentschrift kann aber logischerweise nicht vorab vom später zu ermittelnden, tatsächlichen nächstliegenden Stand der Technik ausgegangen sein.

T 2154/15 - The risks of appealing a refusal

 Key points

• If you appeal a refusal decision, the Board is not restricted in any way in raising new objections. The introduction of the RPBA 2020 does not change this, despite the challenge of the applicant in this case.
• The  Board: “The purpose of the RPBA 2020 is to harmonise the procedure before the boards and increase their efficiency. In particular, Articles 12 and 13 RPBA 2020 give direction to the parties as regards the allowed scope of the appeal and amendments thereof. The board considers these Articles sufficiently clear in that they exclusively rule on the parties' procedural possibilities and not on the board's powers as defined by Article 111(1) EPC.”
• “However, Article 12(2) RPBA 2020 does not limit the board's powers of examination. ”
• Hence, the holding of G10/93 still holds good: “In ex parte proceedings, therefore, the boards of appeal are restricted neither to examination of the grounds for the contested decision nor to the facts and evidence on which the decision is based, and can include new grounds in the proceedings. This applies to both the patentability requirements which the examining division did not take into consideration in the examination proceedings and those which it indicated in a communication or in a decision to refuse the application as having been met.”

EPO T 2154/15 -  link

Reasons for the Decision

1. Admissibility of the appeal

The appeal was filed in due time and form and sufficiently substantiated. Thus, the appeal is admissible.

2. Request for referral - Article 112(1)(a) EPC

The request for referral of three questions to the Enlarged Board of Appeal is refused.

2.1 According to Article 112(1)(a) EPC, in order to ensure uniform application of law, or if a point of law of fundamental importance arises, the board of appeal shall refer any question to the Enlarged Board of Appeal if it considers that a decision is required for the above purposes. Thus, Article 112(1)(a) EPC provides the board with discretion to refer questions following a request from a party.

2.2 Article 111(1) EPC provides the Boards of Appeal with the discretion to either exercise any power within the competence of the department which was responsible for the decision appealed or to remit the case to that department for further prosecution. This provision defines the legal framework for the decision-making powers of the Boards. This legal framework - even as regards ex parte cases - was further interpreted by the Enlarged Board of Appeal (EBA) in G 10/93, point 3 of the reasons, as follows:

"In ex parte proceedings, therefore, the boards of appeal are restricted neither to examination of the grounds for the contested decision nor to the facts and evidence on which the decision is based, and can include new grounds in the proceedings. This applies to both the patentability requirements which the examining division did not take into consideration in the examination proceedings and those which it indicated in a communication or in a decision to refuse the application as having been met."

The EBA stated further (cf. G 10/93, point 4 of the reasons):

"Proceedings before the boards of appeal in ex parte cases are primarily concerned with examining the contested decision. If however there is reason to believe that a condition for patentability may not have been satisfied, the board either incorporates it into the appeal proceedings or ensures by way of referral to the examining division that it is included when examination is resumed."

The appellant argued essentially that because the Rules of Procedure of the Boards of Appeal as in force from 1 January 2020 (RPBA 2020) impose limitations on the parties, corresponding limitations should result for the Boards of Appeal.

The board does not agree with that argument. The purpose of the RPBA 2020 is to harmonise the procedure before the boards and increase their efficiency. In particular, Articles 12 and 13 RPBA 2020 give direction to the parties as regards the allowed scope of the appeal and amendments thereof. The board considers these Articles sufficiently clear in that they exclusively rule on the parties' procedural possibilities and not on the board's powers as defined by Article 111(1) EPC.

The appellant referred to the wording of Article 12(2) RPBA 2020 providing in particular that a judicial review is the "primary" object of the appeal proceedings. However, this formulation does not exclude that there are other important objects of the appeal proceedings, such as legal certainty for the public.

Article 12(2) RPBA 2020 continues to define that in view of this primary object, a party's appeal case shall be directed to the requests, facts, objections, arguments and evidence on which the decision under appeal was based. This defines the scope within which the party may file their appeal. However, Article 12(2) RPBA 2020 does not limit the board's powers of examination. The board further does not agree with the appellant in that the board's powers should be equally limited as the party's scope of appeal. No need for "equal" treatment of a party and the board is apparent, because the party and the board fulfil different roles in appeal proceedings.

2.3 Moreover, the Rules of Procedure of the Boards of Appeal constitute second degree subsidiary law and thus cannot remove powers attributed to the boards by an Article of the EPC. Article 111(1) EPC gives discretion to the boards. This discretion cannot be overruled by the RPBA, a point which is explicitly codified in the RPBA, see in particular Article 23 RPBA.

Further, Article 11 RPBA foresees that the board shall not remit a case unless special reasons present themselves for doing so. The board therefore does not agree to the appellant's suggestion in question 3 above that Article 11 RPBA can be interpreted as including an obligation for the board to remit the case at hand.

2.4 Consequently, the board concludes that the RPBA do not limit the powers of the boards as defined in Article 111 EPC.

As explained above, the Board is of the view that the questions raised by the appellant do not require a decision from the Enlarged Board of Appeal, since they can clearly be answered on the basis of the provisions of the EPC, the Rules of Procedure of the Boards of Appeal in force, and the case law of the Boards of Appeal. Hence, the board decided to refuse the request for referral to the Enlarged Board of Appeal.

T 0929/15 - Identifying a user issuing a voice request

Key points

• Claim 1 is directed to a " Computer network for natural language-based control of a digital home network". 
• The relevant distinguishing feature is: "wherein the voice identification component (220) is operable to identify users issuing user requests by: - processing incoming voice samples of each user request; - extracting features from the incoming voice samples; and - matching the extracted features against voice prints of users stored in a database" 
• The Boar: " The distinguishing feature that is worth further consideration is that the processing of a natural language-based voice request, besides producing a list of tags, also results in the identification of the user that provided the request. In particular, the user is identified by processing incoming voice samples of each request, extracting features therefrom and matching the extracted features against stored voice prints of users." 
• "The solution suggested in claim 1 is to biometrically identify the user who issued the voice request, based on features of the voice sample." 
• The Board finds the feature to be inventive: " the appellant convincingly argued that even though [the closest prior art document] D4 suggests [] that user authentication be required in order to access a companion - an authentication which might also take the form of an audio signature or a biometric signature - D4 consistently teaches (e.g. paragraph [0035]) that in such cases user identification is a precondition for accepting any request from the user. This teaches away from identifying the user while the received request is being processed.”
• The other documents do not teach the feature either.

EPO T 0929/15 -  link

2. Inventive step (Article 56 EPC)

2.1 Document D4 represents the closest prior art to the subject-matter of claim 1.

2.2 Claim 1 comprises a number of features which are not disclosed in D4. The distinguishing feature that is worth further consideration is that the processing of a natural language-based voice request, besides producing a list of tags, also results in the identification of the user that provided the request. In particular, the user is identified by processing incoming voice samples of each request, extracting features therefrom and matching the extracted features against stored voice prints of users.

T 2388/17 - Predictive search results

 Key points

• The Board first explains the invention, starting from known search engines. “The application [filed by Google] concerns providing search query suggestions while the user is entering a search query and providing search results related to the search query suggestions. [] In the method proposed in the application, upon request from a client device, a search engine provides a search resource (e.g. a web search page) and interface instructions to the client device. The search resource and interface instructions (e.g. HTML and scripts) cause the client device to generate a search interface that includes a query input field. [] The characters entered by the user in the query input field are provided to the search engine in the form of query suggestion requests. In response to a query suggestion request, the search engine identifies query suggestions, and provides them to the client device. For example, if the user has typed "ba", the query suggestions may include "bank", "banksy", "Bankrate" and "ball". The client device presents the query suggestions to the user. []”
• The inventive feature is as follows. “After providing the query suggestions, the search engine determines if a condition referred to as "prediction criterion" is met. The prediction criterion [...] is met if a predefined time period expires before another query suggestion request is received. When the prediction criterion is met, search results corresponding to one of the query suggestions are sent to the client device and displayed [note the claim only says ‘providing search result to the client device’, not ‘displaying’]; otherwise, no search results are provided.”
• Just try it in Google - after typing a few letters of your search term you may move the mouse (or your finger) to one of the search terms in the list of suggestions. Apparently according to the invention  Google preloads the search results in the background during time you need for moving the mouse / moving your finger on a touch display, but not if you are still typing quickly. If I understand the decision correctly.
• The Board acknowledges inventive step. “In the prior-art method, search results are transmitted for each keystroke, even if the user immediately after a keystroke changes the query input by entering another keystroke and the results become obsolete. In order to avoid that, in the claimed invention the search engine waits for a predetermined time period. If the user does not enter a keystroke for a predetermined time period, i.e. if the user briefly pauses while typing, there is a higher probability that the user will not change the query input before the search results are displayed. Therefore, by waiting to see if the predefined time period elapses before another query suggestion request is received, i.e. before the next keystroke is entered, the search engine reduces the probability that search results are transmitted from the search engine to the client which are subsequently not of interest to the user, and thereby reduces the amount of data transmitted to the client. At the same time, the choice of a short period of time means that the search results still appear to the user without noticeable latency when the user briefly stops typing.”
• “the Board agrees with the appellant that the distinguishing features have the technical effect of reducing bandwidth usage whilst at the same time maintaining low latency.”

EPO T 2388/17 - link

(decision text omitted)

T 2155/17 - Fresh ground and claim amendment

Key points

•  In the course of the first instance opposition proceedings, a feature is added to claim 1. The opponent raises an objection of added subject-matter only in its Statement of grounds. The patentee objects that this is a fresh ground in appeal in the sense of G 9/91.
• The Board notes that the objection pertains to the amended part of claim 1, and that the amendment does not consist of combining granted claims, such that r.19 of G9/91 applies: “it should finally be confirmed that in case of amendments of the claims or other parts of a patent in the course of opposition or appeal proceedings, such amendments are to be fully examined as to their compatibility with the requirements of the EPC (e.g. with regard to the provisions of Article 123(2) and (3) EPC)” 
• The Board: “Since the objection would not have arisen in respect of the granted patent it does not constitute the raising of a fresh ground of opposition, contrary to the submissions of the respondent.” 
• The Board considers that the new objection is subject to the discretion under Art. 12(40 RPBA 2007 but does not hold the objection inadmissible. “No arguments were provided by the respondent why the Board should make use of this power and no reason can be found by the Board to hold this objection as inadmissible.”

EPO T 2155/17 - https://www.epo.org/law-practice/case-law-appeals/recent/t172155eu1.html

1. Main request

1.1 Added subject-matter (I) raised in the statement of grounds of appeal

This objection related to the definition of the skin layer as including LLDPE and the absence of the expressions "multilayer film", "printable" and "adjoined to the core layer".

1.1.1 Admittance

The set of claims in question, which was submitted with the response to the notice of opposition as auxiliary request 5 and renumbered as auxiliary request 3 during the oral proceedings, is a set of claims amended in opposition by introducing an additional feature in claim 1 (that the skin layer includes LLDPE) which was not present in the granted claims, but allegedly can be found in the original description as submitted by the respondent.

The objection of added subject-matter relates to this amendment and not to the combination of features in the claims as granted. Since the objection would not have arisen in respect of the granted patent it does not constitute the raising of a fresh ground of opposition, contrary to the submissions of the respondent.

T 1627/18 - RNA delivery

 Key points

• This case is interesting mostly because of the technology at issue.
• Namely "a liposome for in vivo delivery of RNA to a vertebrate cell, ... [comprising] RNA which encodes an immunogen".
• Claim 1 of the patent reads as follows: "A liposome for in vivo delivery of RNA to a vertebrate cell, the liposome having a lipid bilayer encapsulating an aqueous core, wherein:
  (i) the lipid bilayer comprises a lipid having a pKa in the range of 5.0 to 6.8 when measured as described in the section "pKa measurement" of the description; and
  (ii) the aqueous core includes a RNA which encodes an immunogen."
• The opposition was withdrawn in the cours of the appeal of the patentee. The Board finds claim 1 to be novel, unlike the OD, and remits the case to the OD to decide whether to continue the proceedings of own motion pursuant to Rule 84(2) EPC.

EPO T 1627/18 - link 

(decision text omitted)

T 2314/16 - In order to come up with this idea (Influencers)

Key points

• This decision was given publication code [B] so I discuss it here. The appeal is about inventive step of software-related invention.  
• The Board, summarizing the invention: "In the invention, participating influencers (called users in claim 1) are each allocated a portion of an advertisement banner displayed on a web site []. The user areas are not visible to the visitor of the web site; the visitor just sees an advertising banner. When the visitor clicks on the banner, the user whose portion was clicked on gets a reward. Over time, the rewards will be distributed according to the sizes of the image portions. The idea is to allocate the partial areas such that the reward distribution rates match the degree of contribution of each user to the advertising of the product or service."
• As a comment, the priority date of the application is in 2010 and Google Trends suggest that the term 'influencer' was not often used in 2010 (note, Instagram was founded in 2010). The application indeed does not use the term ‘influencer’ at all. Even though the term existed in 2010, I'm not sure if it was used in the same sense as now. In particular, I think influences nowadays earn money in a different way (namely, paid posts on their social accounts) than envisaged in the patent application. 
• See also T1294/15, same applicant, directed to "an apparatus for dividing a reward between a content manager and an introduction page manager", but Board 3.4.03 (denying inventive step).
• The Board acknowledges inventive step. “The features of dividing the advertisement display area into partial areas and allocating each partial area to a user such that when the partial area is clicked on the user gets a reward, [are] based on technical considerations of the web page system. The Board agrees with the appellant that the allocation of users to partial image areas is not within the domain of the business person [of the CardinalCommerce approach, see below]. In order to come up with this idea, one needs to understand how a web site is built, and in particular how an image map works.” Therefore the feature is technical under the Comvik approach.
• The Board also reviews the case law framework for mixed inventions under the Comvik approach.  “In T 1463/11 [CardinalCommerce], the Board introduced the concept of the notional business person to help separate business considerations and technical considerations. The business person, who is just as fictional as the skilled person in Article 56 EPC, may formulate business requirements but will not include any technical matter. This approach ensures that, in line with the Comvik approach, all the technical matter, including known or even notorious matter, can contribute to inventive step and is therefore considered for obviousness.”
• The Board also finds the solution to be inventive. “ Starting from the HTML server-side image map [feature of the HTML standard as described in D1] and given the problem of implementing the business requirement of distributing rewards to a number of users according to certain reward distribution rates, the Board judges that it would not have been obvious to assign users to partial areas of an image as in claim 1. Although the means for implementing this was available in HTML, there was no motivation for the skilled person to do so. ”

EPO Headnote
The specification of the business method ended with how to determine the reward distribution ratio. The features of dividing the advertisement display area into partial areas and allocating each partial area to a user such that when the partial area is clicked on the user gets a reward, were based on technical considerations of the web page system. It was not motivated by any business considerations. ... 
In order to come up with this idea, one needs to understand how a web site is built, and in particular how an image map works. Thus, this feature cannot be part of the non-technical requirements. Instead it is part of the solution that has to be evaluated for obviousness. (See point 2.10 of the reasons) (ellipsis in the original). 

T 2314/16 - https://www.epo.org/law-practice/case-law-appeals/recent/t162314eu1.html

decision text omitted. 

T 1180/18 - Alternative solution inventive

 Key points

• The Board, at the end of a lengthy decision: “the Board is of the opinion that the fact that the alternative solution offered in the present claims might appear a priori more cumbersome does not necessarily deprive it of inventiveness. The present process, for the reasons stated above, solves the problem posed and is not suggested by the prior art, which is, in the present case, sufficient to render it inventive.  Accordingly, the subject-matter of claim 1 of auxiliary request 32 involves an inventive step.”
• Claim 1 of AR-32 differs only from the Main Request in that product claims 9 and 10 are cancelled.
• The opposition was filed 21.08.2008 (!). This is the second appeal after decision T 0598/13 of 14.07.2016. In that first appeal, the Board admitted new evidence in connection with sufficiency of disclosure and remitted the case to the opposition division. The Board then did not take any substantive decision on the grounds of opposition.
• “The Board further notes that the interpretation by the opposition division of the results of the patent's example changed following the admittance of new evidence filed during appeal case T 598/13. The disputed amendments being based on a feature of said example, the opposition division was led to re-examine the issue of compliance with Article 123(2) EPC. The Board considers that the change of underlying facts constitutes a sufficient reason for the opposition division to re-examine the issue of compliance with the requirements of Article 123(2) EPC.”
• The substantive decision seems thorough, but the question remains if it is acceptable that the EPO needs 13 years to arrive at the final decision in opposition.

https://www.epo.org/law-practice/case-law-appeals/recent/t181180eu1.html

T 1180/18

(decision text omitted)

T 1768/17 - Held inadmissible and should have been filed

 Key points

• The Board has to decide on the admissibility of AR-4 which corresponds to AR-10 held inadmissible by the OD. There are small differences but the parties don't invoke these differences so the differences don't matter for admissibility.
• In AR-10, the method was amended with additional steps which could require additional prior art for novelty and inventive step.
• Moreover, “then pending auxiliary request 10 was one of 32 auxiliary requests submitted altogether only about 2 months before the oral proceedings before the opposition division (albeit within the deadline then set by the opposition division). In that respect, according to the case law, it is a matter for each party to submit all facts, evidence, arguments and requests relevant for the enforcement or defence of his rights as early and completely as possible, in particular in inter partes proceedings in order to act fairly towards the other party and, more generally, to ensure due and swift conduct of the proceedings. ”
• “By submitting such a high amount of auxiliary requests shortly before the oral proceedings, the appellant [patentee] let little time to the respondent [opponent] (and the opposition division) to react to each of the then-pending requests. In that respect, it is additionally noted that the opposition division indicated that said auxiliary request 10 was prima facie not supported by the application as filed (top of page 8 of the reasons). Therefore, its admission would have required that new issues be dealt with for the first time at the oral proceedings before the opposition division, which goes against the economy of the proceedings.”
• Therefore the OD was correct in not admitting AR-10. 
• “The Board further notes that, according to the case law, the fact that the opposition division did not admit a late-filed document and did not exceed the proper limits of its discretion by not admitting it does, in principle, not prevent the Board from admitting the document in particular if e.g. it considers it to be prima facie relevant [...] In particular, a submission which would have been admitted into appeal proceedings if it had been filed for the first time at the outset of those proceedings should not be held inadmissible pursuant to Article 12(4) RPBA, for the sole reason that it was already filed before the department of first instance and not admitted (T 971/11, section 1.3 of the reasons). Although the above principles are related to late-filed documents, the Board considers that the same principles equally apply to the admission of a non-admitted late-filed request.”
• “the question has to be answered whether there are objective reasons why the appellant could have been expected to present such a request in the first instance proceedings (see Case Law, supra, V.A.4.4.2.a and V.A.4.11.1), i.e. if that request should have been filed in the first instance proceedings.”
• This gives an interesting convolution of the test of Art.12(6) first sentence with that of Art. 12(6) second sentence RPBA 2020.
• “ the [patentee] has not shown, not even argued that there were any reasons (apart from the non-admittance of auxiliary request 10) which would justify the filing of new requests together with the statement of grounds of appeal. The Board also sees no compelling reasons in that respect, in particular because no new objection or document was filed by the opponents at a late stage of the opposition proceedings and/or it was not shown that the appellant was taken by surprise at or shortly before the oral proceedings before the opposition division. In that respect, the non-admission of an auxiliary request by the opposition division is not seen as a decision which may come as a surprise to the patent proprietor, in particular when a set of 32 auxiliary requests was submitted shortly before the oral proceedings in front of the opposition division.”

T 1768/17 -  link

7. Admittance of auxiliary request 4

7.1 The admittance of auxiliary request 4, which was filed together with the statement of grounds of appeal, is subject to the stipulations of Article 12(4) RPBA 2007 (see section 3.1 above).

7.2 Although the wording of claim 1 of auxiliary request 4 is not completely identical with the one of auxiliary request 10 defended in front of the opposition division, the arguments provided by both parties in respect of the admittance of auxiliary request 4 were not related to these difference in wording but only in respect of the high similarity between the subject-matter being defined in both auxiliary requests. Therefore, the issue in dispute between the parties was solely related to the question whether or not auxiliary request 4 should be held inadmissible pursuant to Article 12(4) RPBA 2007 because auxiliary request 10 was already not admitted into the proceedings by the opposition division (see section 3.1.1 of the reasons of the decision).

T 0333/20 - Underpayment and appeal fee refund

 Key points

• Two of the frequent topics of the 2020 case law of the Boards coming together: the SME appeal fee rate and the appeal fee refund rules of amended Rule 103. 
• Rule 103(3)(c) specifies that the appeal fee is refunded at 50% if the appeal is withdrawn “in all other cases, before the decision is issued”.  In the present decision, the Board concludes that the appeal fee is nevertheless refunded at 100% if the appeal is withdrawn and at the same time is deemed to not have been filed due to the underpayment of the appeal fee (Article 108 EPC and Art. 8 Rfees). 
• The appellant paid the reduced amount of the appeal fee for SME's without being entitled to the reduction and withdraws the appeal after the filing of the Statement of ground, also requesting the refund.

EPO T 0333/20 - 

https://www.epo.org/law-practice/case-law-appeals/recent/t200333du1.html

Entscheidungsgründe

1. Die Beschwerdeführerin hat ihre Beschwerde am 26. Mai 2020 rechtswirksam zurückgenommen und gleichzeitig einen Antrag auf Rückerstattung der Beschwerdegebühr gestellt.

2. Die Rücknahme der Beschwerde beendet das Beschwerdeverfahren in der Sache selbst, jedoch nicht im Hinblick auf Anträge, deren Gegenstand sich durch die Rücknahme der Beschwerde nicht erledigt hat.

Von der Verfahrensbeendigung ist deshalb der von der Beschwerdeführerin zusammen mit der Beschwerderücknahme gestellte Antrag auf Rückzahlung der Beschwerdegebühr nicht erfasst (siehe auch z.B. die Entscheidungen T 41/82, ABl. EPA 1982, 256; T 89/84, ABl. EPA 1984, 562; J 12/86, ABl. EPA 1988, 83; T 773/91 und J 37/97).

T 1622/16 - The last case of 2020

 Key points

• This decision was the last one to be published in 2020 and therefore will stay on top in the list at  https://www.epo.org/law-practice/case-law-appeals/recent/2020.html. 
• The decision itself is not that interesting: the appeal proceedings are terminated due to lapse of the patent in all designated states. 
• First the timeline of the proceedings. The application filed as a PCT application in 2004, so the opposition-appeal proceedings were still not completed by a substantive final  decision in patent year 16. 
• As to the detailed procedure, there was nothing out of the ordinary, but also nothing for the EPO to be proud of in my view. The application was just stuck at all the typical backlogs that exist(ed) between 2004 and nowadays at the EPO. The EP Entry was in 2006, supplementary ESR in 2010. That's the notorious supplementary ESR black hole that the  EPO had in those days (source: difficult to find nowadays, but the target to issue Supplementary ESR's in six months was introduced in 2014 as the first stage of "Early Certainty from Search", see here). First Communication in 2011, Intention to grant in 2012. The opposition filed in 2014. Summons in 2015, decision OD in 2016. This was just the normal timeline for oppositions until the streamlining of the procedure in 2016 (note here). Appeal and Statement of ground filed by the opponent in 2016, response January 2017, summons Board January 2020, preliminary opinion July 2020. So this is just the typical backlog at the Boards of appeals nowadays.
• So we are just looking back at the past slowness of the EPO first instance proceedings. 
• The title of the application is "EXHAUST EMISSION CONTROL DEVICE", dealing with a filter cartridge for reducing fine particulate emissions from diesel engines. So also as a matter of technology, things have moved on and since 2004. "Clean diesel" sounds very 2010's to me. 
• As an exercise for any EQE candidates reading this post: why are only DE, FR, and GB designated in the patent (B1) and how was this choice made? 
• Also interesting is that the termination of the proceedings is pronounced in a formal decision of the Board, not in a Notice / letter of the Registrar.
• Rule 84(1) EPC provides that "if the European patent has been surrendered in all the designated Contracting States or has lapsed in all those States, the opposition proceedings may be continued at the request of the opponent". Rule 84(1) EPC does not specify what happens if the opponent does not file such a request. The Board: "According to an interpretation per "argumentum e contrario" of this provision it follows that the appeal proceedings are to be closed if the opponent and sole appellant does not submit such a request within the period prescribed." (established case law; standard recital). 

T 1622/16 -  link

Summary of Facts and Submissions

I. The appellant/opponent lodged an appeal against the interlocutory decision of the opposition division of 6 May 2016 which found that European patent No. 1 701 011 in an amended form met the requirements of the EPC.

II. In a communication dated 29 September 2020, the Board informed the parties that the patent in suit had lapsed with effect for all the designated Contracting States and invited the appellant to inform the board, within two months from notification of the communication, whether it requested a continuation of the appeal proceedings (Rules 84(1) and 100(1) EPC).

III. No reply was received from the appellant/opponent within the two month period.

Reasons for the Decision

1. Rule 84(1) EPC provides that 'if the European patent has been surrendered in all the designated Contracting States or has lapsed in all those States, the opposition proceedings may be continued at the request of the opponent filed within two months of a communication from the European Patent Office informing him of the surrender or lapse.'

2. Based on Rule 100(1) EPC, Rule 84(1) EPC applies mutatis mutandis in opposition appeal proceedings, i.e. the appeal proceedings may be continued at the request of the appellant/opponent filed within two months as from notification of the lapse.

3. In the present case, the notification of the lapse within the meaning of Rule 84(1) EPC was sent by registered letter to the appellant on 29 September 2020. The period for requesting continuation of the appeal proceedings ended on 9 December 2020 by virtue of Rule 126(2) EPC) in conjunction with Rule 131 EPC. No such request was filed within that time limit.

4. According to an interpretation per "argumentum e contrario" of this provision it follows that the appeal proceedings are to be closed if the opponent and sole appellant does not submit such a request within the period prescribed.

5. Since no timely request was filed , the appeal proceedings are to be terminated.

Order

For these reasons it is decided that:

The appeal proceedings are terminated.

T 1243/17 - Length of proceedings

 Key points

• This is an appeal against a refusal. The language of proceedings is French. The Board in a few sentences confirms the refusal because the claims are directed to a method that has as only technical feature that it is automated. 
• The appellant complained about the length of the proceedings - application filed in April 1999, search report in 1999, first Communication in 2007, refusal by the Examining Division in 2016 (!); however without requesting any particular remedy. The Board discusses the matter, finding that the first instance examination proceedings are not covered by Article 6 ECHR but still considers the case law of the ECtHR to be useful for examining the length of the proceedings in the case.
• The Board finds that the applicant had not taken sufficient measures to accelerate the proceedings in the present case, by requesting extensions and not requesting PACE.
• The legal point at issue is that under the case law of the ECtHR, “In considering procedural length, the starting point is normally taken to be the moment the action was instituted before the competent court, although exceptionally in cases where, for example, certain preliminary steps were necessary before an administrative authority as a preamble to court proceedings, the starting point can be that of the mandatory preliminary administrative procedure; see points 271 and 272” (Guide on Article 6, see also here) and whether the EPO first instance examination proceedings are such "preliminary steps [...] necessary before an administrative authority as a preamble to court proceedings"). 
• The present Board suggests they are not, because they are 'unilateral' and non-contentious. The Board's reasoning is unclear to me because (i) the same applies for an appeal against a refusal, it's not that the Examining Division is respondent in such an appeal before the Board, and (ii) the Guide refers to "mandatory preliminary administrative procedure" as being decisive (not e.g. 'inter partes') and there appears to be no way of bypassing the first instance proceedings and directly filing a European patent application with the EPO Boards of Appeal, there appears to be also no way of asking the Boards to take up the case before the Examining Division issues the refusal decision. See also T 2707/16.

https://www.epo.org/law-practice/case-law-appeals/recent/t171243fu1.html

4. Activité inventive (article 56 CBE 1973)

Le procédé selon la revendication 1 et le système selon la revendication 5 couvrent des processus et systèmes décisionnels de contrôle n'ayant aucun effet technique et ne s'appliquant pas à un problème technique. La seule indication que le processus n'est pas effectué par des personnes est le terme "automatique". Le domaine d'application n'est pas spécifié dans les revendications, mais la description explique qu'il pourrait s'agir de domaines économiques ou organisationnels, domaines qui ne sont pas considérés techniques selon l'article 52(2) CBE. En outre, les revendications n'impliquent pas que, par exemple, l'invention améliore la vitesse, réduit la consommation de mémoire ou améliore la précision du procédé et du système revendiqués. L'objet des revendications 1 et 5, n'implique donc pas une activité inventive (article 56 CBE 1973; voir T 0641/00).

5. La durée de la procédure

5.1 La requérante considère que, conformément à la décision T 0823/11, un délai de cinq ans entre le rapport de recherche et la première notification, ainsi qu'un délai de deux ans entre une réponse à une notification et la notification suivante sont inacceptables. Dans la présente procédure, les délais ont été encore considérablement plus longs. De plus, selon cette jurisprudence, la lenteur de la procédure d'examen dans le cas présent devrait même être considérée comme constituant une violation de l'article 6(1) de la Convention Européenne des Droits de l'Homme (CEDH). La requérante n'a formulé aucune requête explicite fondée sur la durée de la procédure d'examen.

T 0483/17 - Don't forget the rejoinder

 Key points

• The OD rejected the opposition. The Board finds the public prior use PU-1 to be sufficiently proven. The public prior use was in the sphere of the opponent and must be proven up to the hilt, but "this does not mean that the opponent has to provide each and every theoretically possible piece of evidence. Instead, it is sufficient that the evidence put forward convinces the Board."
• The Board considers claim 1 of the Main Request to be not novel and turns to AR-1 filed with the Appeal Reply Brief of the patentee as respondent. 
• The opponent submits an inventive step attack starting from the (now proven) prior use during the oral proceedings. 
• “The appellant [opponent] raised an objection of lack of inventive step starting from prior use PU1 at the latest possible opportunity, namely at the end of the oral proceedings before the Board. Auxiliary request 1 was filed by the respondent with its reply to the grounds of appeal and it corresponds to auxiliary request 1 of the opposition proceedings. It was therefore known to the appellant long before the oral proceedings in the appeal proceedings.”
• “The fact that the objection had already been put forward in opposition proceedings does not imply that it is part of the appeal proceedings. It instead proves that the objection could (and should) have been raised earlier in the appeal proceedings. There are no exceptional circumstances which justify the objection being raised only at this late stage of the appeal proceedings, and the appellant has not put forward any cogent reasoning for admitting this objection either.”
• So, attacks do not carry over from the first instance proceedings but need to be repeated in appeal.
• Moreover, the appropriate time for submitting attacks in reply to requests filed with an Appeal Reply Brief of a patentee as respondent is the appellant's rejoinder, which can be found only in the Explanatory  Notes to the RPBA. 
• “Furthermore, although the objection is based on documents which are part of the appeal proceedings, it constitutes a completely new line of attack, which took both the respondent and the Board by surprise and which cannot reasonably be expected to be dealt with at such late stage of the proceedings. The Board therefore decided not to admit the inventive-step objection starting from the prior use PU1 into the proceedings”

2. Main request - Novelty in view of public prior use

2.1 Since the sale and delivery of five roller bearings from the appellant/opponent (SKF) to a third party (Hansen Transmissions) is completely out of the sphere of the respondent/patent proprietor (NTN Corp.), according to the case law of the Boards of Appeal, proof has to be provided "up to the hilt". The determination of the prior use thus requires that the facts giving rise to the prior use must be established without gaps (see T 472/92, OJ 1998, 161, point 3.1 of the Reasons); however, this does not mean that the opponent has to provide each and every theoretically possible piece of evidence. Instead, it is sufficient that the evidence put forward convinces the Board.

On the other hand, a prior use has not been sufficiently proven if the proprietor successfully pointed out any inconsistencies or drew attention to any gaps in the opponents chain of proof (see T 472/92, op. cit.).

2.2 Applying these principles, the Board considers it established that the alleged prior use took place.

[...]

T 0265/20 - Granted as is

Key points

• All the drawings were lacking in the Rule 71(3) Communication. The applicant didn't notice, paid the appeal grant fee and filed the translated claims, and filed the present appeal after the grant.
• The present Board 3.5.05 does not follow T 1003/19 (Board 3.3.05) and T 2081/16 ( Board 3.5.03), instead follows T 2277/19 (Board 3.2.02) and more or less says "too bad but the appeal is not allowable under the 'deemed approval' of Rule 71(5)".
• “This binding effect does not appear unjust or unbalanced. It may reasonably be expected that the applicant reads the communicated text thoroughly and verifies that the text is the one it expects it to be before approving it by paying the fee and filing translations. ”
• Present decision in the headnote: “ It is not the content of the text intended for grant which triggers the deemed approval under Rule 71(5) EPC, but rather the applicant paying the fee for grant and publishing and filing the translations according to Rule 71(5) EPC. Thus the "true will" of the members of the examining division when editing the communication pursuant to Rule 71(3) EPC is of no relevance” 
• The Board considers the appeal to be admissible, unlike T 2277/19, stating that the facts are different. 
• The Board: “The facts of the case at hand differ [from T 2277/19]  in that no drawings at all, neither the requested ones nor any others, were included in the text communicated to the appellant under Rule 71(3) EPC and the Druckexemplar, and in that no explicit approval was given, but the approval was rather deemed to have been given. Thus, there is no diverging case law and consequently no need to refer the case to the Enlarged Board of Appeal.”
• The Board does not refer questions to the Enlarged Board regarding the allowability of the appeal. 
• The online file shows that the publication of the mention of the grant was cancelled (Bulletin 2020/48, p.4547) and indeed the status is 'Grant of patent is intended' as of 31.10.20 in the online Register. I assume that in due time a new mention of the grant will be published. A divisional application has already been filed, which is hence filed before the date of the effective publication of the mention of the grant.

EPO T 0265/20 - link 

Reasons for the Decision

1. The appeal is admissible.

1.1 According to Article 107 EPC, first sentence, any party to the proceedings adversely affected by a decision may appeal.

1.2 The board acknowledges that the appellant is adversely affected in the case at hand by the discrepancy between the appellant's explicit request in the examination proceedings for the grant of a patent and the content of the B1 publication. The impugned decision did not include drawing sheets 1/4 to 4/4, and thus the B1 publication lacks these drawing sheets, which is clearly less than what was requested by the appellant. The fact that all of the drawing sheets were missing is sufficient in the present case to assume that the appellant was adversely affected by the impugned decision, irrespective of why they are missing and how the legal framework of Rule 71 EPC has to be interpreted.