T 0293/25 - Oral submissions that are too complex

Key points

• "The respondent did not respond in writing to the preliminary opinion, but rather contested the conclusion mentioned above at the oral proceedings before the board. In particular, they provided detailed oral submissions as to why it was not possible to derive from a comparison of example 1 and comparative example 4 [of the patent] that features (C), (G) and (H) contributed to achieving [a technical effect]"
• "the experimental section of the patent spans 20 pages and covers not only a great number of examples and comparative examples, but also various intermediate products, with multiple parameters for each of them being presented in 8 different tables"
•  "The respondent's oral submissions lasted for about 45 minutes and mostly, if not entirely, consisted of multiple comparisons of the properties of various examples and comparative examples and pairs thereof, which had not been presented in writing before. This submission of entirely new information was so extensive and complex that it was not possible for either the board or the appellant to take detailed note of, and to understand it sufficiently to form an informed opinion thereon."" '
• "In a case where new, technically complex information is provided in oral submissions lasting 45 minutes, the challenge of taking accurate note of what is said in itself prevents the other party from adequately responding thereto. Therefore, taking the new submissions into consideratidon would have violated the appellant's right to fair proceedings. In addition, postponing the oral proceedings until a later date would have gone against the principle of procedural economy, in particular because the situation could have easily been avoided, had the respondent filed their submissions in writing in due time (cf. the principles of fair proceedings and procedural economy, which are cornerstones of the proceedings (including) before the boards, and which have to be properly balanced, according to Articles 12 et seq of the RPBA, e.g. T 2920/18, T 339/19, T 1857/19, T 1800/21)."
• "For these reasons, it was not possible to consider the new submission."
• We don't have a transcript of the hearing, but I wonder if the opponent was warned during their 45 minutes by the Board that their submissions were too complex.
• 
  

EPO 

The link to the decision is provided after the jump.

T 1471/24 - No two-part form, application refused

Key points

• Rule 43(1) provides that "where appropriate" claims shall contain a preamble and a "characterised in that"  part (two-part form).
• "The examining division found that D1 represented the closest prior art to the claimed invention and that the subject-matter of claim 1 was both novel and involved an inventive step over the cited art (see page 5 of the decision). It nonetheless found that the requirements of Rule 43(1) of the Implementing Regulations were not fulfilled since claim 1 was not drafted in the two-part form, despite this being appropriate  ...."
• "It is noted that the purpose of the two-part form of claim is to allow the skilled person to see clearly which features necessary for the definition of the claimed subject-matter are, in combination, part of the prior art. It is established practice before examining divisions not to insist on the two-part form if it is sufficiently clear from the indication of prior art made in the description which features of the claim under examination are known therefrom (see also Guidelines for Examination, F-IV, 2.3.2). "
• "However, this proviso regarding the features known from the prior art, as found by the examining division in point 21.4 of its decision, has not been satisfied in the present application. D1 is indeed acknowledged on page 1 of the description (dated 15 December 2022) yet this acknowledgement fails to identify which specific features of the claim 1 under examination are known from D1. Fundamentally, therefore, in view of the two-part form not having been used in the independent claim, a resultant requirement for the content of the description to include an indication of which features of claim 1 were known from the prior art was not fulfilled."
• "The appellant further argued that the proposed two-part form was incorrect insofar as D1 discloses a set of various flat mirrors rather than, as proposed by the examining division for inclusion in the preamble of claim 1, merely a set of various mirrors. Herein lies a misunderstanding of the appellant. The preamble of a claim drafted in the two-part form should include those features of the claim known in combination from the prior art (Rule 43(1)(a) EPC). In the present case, a set of various mirrors is indeed known from D1, albeit in D1 the various mirrors of this set are flat. That the mirrors of D1 are flat is however irrelevant; D1 without doubt does disclose a set of various mirrors, such that this feature can be included in the preamble of a two-part form of claim."
• The applicant raised an argument based on Article 123(2), which is very interesting, although it was rejected by the Board. "The appellant's further contention in this regard that the generalisation of 'flat mirrors' of D1 to merely 'mirrors' in the preamble of claim 1 offended Article 123(2) EPC is also based on a misunderstanding of this provision of the EPC. Article 123(2) EPC prohibits a European patent application being amended in such a way that it contains subject-matter which extends beyond the content of the application as filed. How the claimed subject-matter, or even the features included in the preamble of a claim, differs from a prior art document is irrelevant for the consideration of meeting the requirement of Article 123(2) EPC. Similarly, as it is the subject-matter of a claim as a whole which is considered when evaluating compliance with Article 123(2) EPC, novel information derivable alone from the preamble of a claim does not give rise to objections under this article; it is the subject-matter of the claim as a whole for which the prohibition of extension beyond the content of the application as filed applies."
• The applicants are two natural persons, not represented by a professional representative. The current applicants are the heirs of the original applicant/inventor, who has deceased. 
• The applicant did not request oral proceedings. The Board issued the decision without oral proceedings or advance communication. 
• There was no auxiliary request with the claim in two-part form, and the appeal was dismissed. The examining division's refusal decision has, hence, become final. This is remarkable, as there was novel and inventive subject-matter.  
• 
  
EPO

The link to the decision is provided after the jump.

T 0528/25 - DABUS (II)

Key points

• The applicant essentially wishes to designate an AI tool as the inventor in this examination appeal.
• The  Board: "the EPC requires that a legally capable person is named as the inventor"
• Just as a note, the Board does not say "natural person" or "human" but refers to "legally capable persons" (as in J 8/20). Let's suppose that this choice of words is intentional. Then, considering that in legal English, the term "person" is the genus of the species "natural persons" and "legal persons" (companies etc.), the phrase ""legally capable persons"" is not limited to human persons. Perhaps, one day, if a national law treats an AI agent as capable of some legal transactions (and/or if a national law recognises an AI agent as a proprietor of some rights, i.e. as a valid holder of a bitcoin wallet or bank account), it may turn out that J 8/20 left a small door open. 
• "It must be considered that patent protection for an invention that was essentially developed using artificial intelligence (AI) would be impossible under the EPC, if natural persons were excluded from being regarded as inventors of AI-generated inventions, since, as indicated above, the EPC requires that a legally capable person is named as the inventor. "
• "the provisions on patentability under Article 52 ff. EPC do not rule out patent protection for AI-generated inventions. An invention involves an inventive step under Article 56 EPC if it is not obvious to a person skilled in the art in view of the prior art, which may also be the case for inventions developed by using artificial intelligence (AI). If an invention is developed using an AI-machine, this also requires some human input or influence, so that it is in principle not excluded to identify one or more natural persons to whom a causal contribution to the invention is attributable, and who can therefore be regarded as inventors within the meaning of the EPC.
• The Board thus concludes that, in principle, the designation of an inventor under the EPC is also possible for inventions developed using artificial intelligence (AI)."
• The appeal is dismissed.
• A divisional application has been filed already. 

EPO 

The link to the decision is provided after the jump.

T 0299/24 - Correcting errors in amended claims

Key points

• Claim 1 of the former main request reads: "(a) "Headrest (10), in particular headrest for vehicle seats, (b) comprising a bone conduction two-way sound transmission system (1), which in turn comprises at least one bone conduction loudspeaker (5) and at least one bone conduction microphone (7), ..."
• "With its written reply to the board's [preliminary opinion], the applicant filed a corrected main request, replacing the phrase "in particular headrest for vehicle seats" in claim 1 with the wording "headrest for vehicle seats" []. It framed this submission as a correction of an error under Rule 139 EPC."
• The Board: "Under Rule 139, second sentence, EPC, if a request for correction concerns the claims, the "correction must be obvious in the sense that it is immediately evident that nothing else would have been intended than what is offered as the correction". According to the established jurisprudence of the Boards of Appeal (see G 3/89, Reasons 5 and 6; G 11/91, Reasons 6), a two-step approach applies in this regard. It must first be established that it is obvious that an error is in fact present in the document filed with the EPO, the incorrect information having to be objectively recognisable by the skilled reader using their common general knowledge. Secondly, the correction of the error must be obvious."
• My analysis is that Rule 139, second sentence, is an implementation of Article 123(2) EPC and hence provides a rule for determining when a purported correction has sufficient basis in the application as filed (i.e., does not extend beyond the content of the application as filed). This follows directly from G 3/89, hn. 1, in my view ("Such a correction is of a strictly declaratory nature and thus does not infringe the prohibition of extension under Article 123(2) EPC."
• In the present case, the amended claim had an undisputed, explicit basis in the application as filed. The issue was not whether the application as filed contained an error. Hence, I don't think the second sentence of Rule 139 applied.
• Instead, the case concerns a case amendment, in particular one under Article 13(2) RPBA. Depending on the facts of the case, if a "subsequently filed document" (i.e., a document filed after the filing date of the patent application) contains an error, the party concerned may correct that error later in the procedure. The evident nature of the error and the correction (or lack thereof) are among the factors the board must consider when deciding whether to admit the correction. At any rate, a correction of an amended claim 
• Credit to Mr Thomas for flagging the decision on his weblog.
•  The Board does not admit the amended set of claims (with reasoning that would also apply under Art. 13(2) RPBA, in my view): " Crucially, nowhere in the statement of grounds of appeal does the appellant base any argument on the headrest being exclusively limited to a "headrest for vehicle seats". The appellant neither stated that claim 1 was restricted to overcome a specific objection, nor did it rely on the specific vehicle-seat environment to establish an inventive step. Because the appellant's technical arguments apply perfectly and seamlessly to the broader claim wording ("in particular headrest for vehicle seats") that was actually filed, the skilled reader reviewing the statement of grounds of appeal alongside the claims would find a coherent, self-consistent appeal case. There is thus no logical disconnect that would alert the skilled reader to a mistake.
• "Since the request for correction under Rule 139 EPC has been refused, the "corrected" main request constitutes an "amendment" of the appellant's appeal case. However, leaving the question of admittance aside, the board considers the "corrected main request" not to comply with Article 56 EPC. In this regard, the board endorses the examining division's assessment of inventive step set out in Reasons 10 of the appealed decision, for the following reasons."
• This makes the whole discussion of Rule 139 moot (or obiter), it seems to me.

EPO 

The link to the decision is provided after the jump.

T 1462/24 - Allocation of files to Boards (DMF for MS)

Key points

• A case with fourteen opponents and an opponent, about a (blockbuster) medicine (DMF for MS).
• Opponent 2 filed a Notice of appeal three days after the oral proceedings before the OD. O2 wrote that: "The subject-matter of the claims has changed significantly since the International Patent Classification was provided. The patent now claims a specific dose'"   and requested that  " these appeal proceedings be allocated to board of appeal 3.3.04 or 3.3.07" (instead of Board 3.3.08).
• An opposition was also filed against the parent patent, and the appeal in that case was decided by a panel including Ms P as the rapporteur. The Board (3.3.01) in that case dismissed the proprietor's appeal against the revocation of the patent (based on a lack of basis under Art. 123(2)). 
• The Chair of Board 3.3.08 and the Chair of Board 3.3.04 decided to transfer the case to Board 3.3.04. The Chair of Board 3.3.04 is Ms P, who is also the chair of the panel deciding the present case.
• The current Board finds the (very similar) claim to lack basis in the application as filed, for essentially the same recited feature as in the parent case.
• According to the EPO register, there are 9 divisional applications in this patent family. I wish to refrain from commenting on this point here, as it is sensitive after Copaxone (and I care to note that the proprietor did not disapprove of the text of the patent, allowing us and the opponents to benefit from the reasoned decision).
• "Oral proceedings took place before the Board on 25 and 26 November 2025 in the presence of all parties save for opponent 10. In the course of these proceedings, the patent proprietor confirmed that its request for referral of questions to the Enlarged Board of Appeal was no longer conditional and requested that three questions be put to the Enlarged Board of Appeal under Article 112(1)(a) EPC. The Board rejected this request. Subsequently, the patent proprietor submitted two written statements of objections under Rule 106 EPC, one on 25 November 2025 and one on 26 November 2025 (see Annexes of the minutes of the oral proceedings before the Board). The Board rejected these objections. At the request of all opponents present at the oral proceedings, the Board ordered a different apportionment of costs. "
• The proprietor is unhappy about the transfer of the case to Board 3.3.04, and raised an objection under Rule 106 - after the Board had announced the unfavorable conclusion on Art. 123(2) during the hearing.
•  The Board: "the RPBA and the BDS [Business Distribution Scheme] do not provide for parties to appeal proceedings to participate in the procedure set out in Article 1(2) of the BDS and thus do not provide for a right to be heard on the proper allocation of a case file. The latter is an internal case management process involving solely the Chairs of the Boards and, in case no agreement is reached on the allocation, the Presidium. Since the allocation of an appeal case to a Board of Appeal is not a subject for disposition by the parties, any submission by a party to appeal proceedings regarding the reallocation of an appeal pursuant to Article 1(2) of the BDS, including any wish of a party that an appeal be heard by a specific Board (e.g. opponent 02's request submitted in its notice of appeal for the appeal to be allocated to Board 3.3.04 or 3.3.07) is irrelevant and must therefore be disregarded."
• "The patent proprietor also made untenable assertions as to why the technical content of the appeal could not be a valid reason for the transfer (see letter of 14 March 2025, item 21 ii) and item 13), which ultimately amounted to an accusation of unprofessionalism or arbitrariness by the Chairs involved. The patent proprietor's unfounded accusations, which cannot be excused by a representative's lack of legal knowledge, culminated in an accusation of bias"

• "the objection pursuant to Rule 106 EPC came far too late to comply with the spirit and purpose of this provision, which is that a party should draw the Board's attention expressly, and separately from its other submissions, to any fundamental procedural defect to enable it to investigate and, if necessary, rectify the alleged defect while the proceedings are still pending. The Board therefore had no option but to dismiss the objections pursuant to Rule 106 EPC raised in the patent proprietor's letter dated 26 November 2025 also on formal grounds"

•  The Board considers that, despite repeated [questions] the patent proprietor has not provided any legitimate reason for its objections under Rule 106 EPC and their filing after completion of the debate on the merits of the appeal T 1462/24"

• " Since a whole day of discussions had been necessitated by the filing of the patent proprietor's unsubstantiated and even unwarranted objections set out in its letter dated 25 November 2025, which were specified and amended by its letter dated 26 November 2025, the Board considered it equitable to order the patent proprietor to bear the costs for remuneration of one day for at most two professional representatives present at the oral proceedings of 26 November 2025 for each opponent"

• "the patent proprietor remained convinced of its own biased view of events and accused the Chair involved in the reallocation and the Board subsequently constituted of having acted unlawfully. This was unprofessional and even disrespectful. While the patent proprietor's conduct can hardly be seen as compliant with its duty to act in good faith, it does not matter whether this conduct is also to be qualified as an abuse of proceedings since the request for reapportionment of costs could be allowed on the basis of Article 16(1)(c) RPBA"

EPO 

The link to the decision is provided after the jump.

T 1179/23 - Not a realistic starting point

Key points

• " in the Board's view, the "simple mixture" mentioned on page 14 of D1 does not represent a realistic starting point. The starting point for assessing inventive step starting from D1 is therefore the multilayered compositions of examples C1 or C2. 
• The reasons are as follow.
• " Both appellants-opponents considered that the embodiment mentioned in the sentence on page 14 lines 7 to 8 of D1 relating to a simple mixture of isolated tartaric acid pellets and dabigatran represented the closest prior art embodiment."
•  The Board disagrees and is of the opinion that the skilled person reading the sentence on page 14 lines 7 to 8 of D1 understands it as speculative and as not referring to an actual concrete realisation of simple mixtures. The reasons are the following: ... the "simple mixture" ... is disclosed at one single occurrence in D1 in one single sentence, namely "Alternatively, the simple mixture of isolated pellets and dabigatran is filled into capsules or sachets" ... There is no further mention or description of this "simple mixture" in the entire document. 
• "the core of the invention [of D1] is indeed the "isolated pellets" but for the further preparation of multilayered compositions. Indeed claim 1, the "summary of the invention" (see page 6 of D1) and the examples of final compositions exclusively concern multilayered pellets containing tartaric acid and the active ingredient [ dabigatran etexilate mesylate (DEM) ] in different layers."
• "The starting point for assessing inventive step starting from D1 is therefore the multilayered compositions of examples C1 or C2."

EPO 

The link to the decision is provided after the jump.

T 0581/20, T 0134/23, T 0156/21, etc. - Spring cleaning? - Art. 15(9) RPBA

Key points

T 0581/20

• Decision taken 21.05.2024, issued in writing on 29.04.2026. 
• Claim 1:  "A method in a data processing system (102, 302) for temperature weighting in energy-usage measurements ...".
• No Communication under Art. 15(9) RPBA visible in the online file.
• The case took more than 6 years from the Statement of grounds. I wonder whether, once the 24-month target is passed, the extent of any further delay still matters (to the TBA itself or the BoA management). The same question can be raised for the 3-month period of Art. 15(9) RPBA. 
• I also wonder if the BoA management follows up on the (seemingly) lack of Art. 15(9) communications (see also the cases discussed below). 

• 
  
• T 0156/21
• Decision taken on  14.05.2024; online on 07.05.2026.
• No communication under Art. 15(9) RPBA is visible in the online file.
• The Board remits the case to the examining division for further examination (!)
• The invention relates to a combination of continuous integration (CI) of software development and change management computer systems (CMCS)."
• The Board disagrees with the examining division's application of the Comvik approach, yet does not expressly indicate which features it considers to be technical.
• "In this case, it appears that the invention should be analysed more specifically as either a further development of the revision control system of D1, by the same applicant, or a modification to the known continuous integration technique. Starting from either would then entail a precise analysis of the differences and the effect of the differences in the context leading to a statement of the problem solved."

T 0850/21

• Decision of 26.11.2024, issued on 22.04.2026.
• In the field of IT.
• No communication under Art. 15(9).
• https://www.epo.org/en/boards-of-appeal/decisions/t210850eu1

• T 0134/23
• Decision of 14.05.2025, online on 12.05. 2026.
• There was a Communication of the Board informing the parties about the delay, issued on 21.04.2026, almost a year after. No earlier communication under Art. 15(9) is visible in the online file.
• The decision seems a rather run-of-the-mill biotech case.
• https://www.epo.org/de/boards-of-appeal/decisions/t230134eu1

T 741/23

• Decision taken 14.05.2025, online on 29.04.2026.
• A pharma case, 8 opponents, Board 3.3.04.
• https://www.epo.org/en/boards-of-appeal/decisions/t230741eu1 
• We will see if a petition for review will be filed.
• Two timely communications under Art. 15(9) were issued.

T 1288/23

• A case in the field of logistics. Decision on  24.10.2025, online on 29.04.2026.
• No communication under Art. 15(9) visible.
• There were two other decisions regarding patent applications by the same applicant. 
• https://www.epo.org/en/boards-of-appeal/decisions/t231288eu1 

There were a couple of other decisions published in the last few weeks, with the oral decision already given in October and November 2025. 

Perhaps it was spring-cleaning time for some cupboards in Haar? Let's hope all the cupboards are now clear.

T 0953/23 - The proprietor's own prior use

Key points

• The inventor is "PREISSMAN, Howard".  The OD rejected the opposition. The opponent appeals. The proprietor is Keller Medical, Inc.
• "D1 is an article published in 2012, i.e. after the filing date of 29 April 2009 of the patent [filed without priority]. The article concerns the development of the "Keller Funnel". 
• "In the section of D1 entitled "Serendipity", second paragraph, it is explained that Mr Preissman perfected the funnel's design  ..."
• "On the first page of the article (p. 283 at the bottom right), it is stated that "[w]e began introducing the prototype and its potential benefits to influential plastic surgeons at the beginning of 2009 ...". The appellant [opponent] alleged that it followed from this passage that the invention had been disclosed to the public, namely to influential plastic surgeons, before the filing date of the patent in suit."
• The Board: "In the absence of any indication of a different understanding, the Board interprets the expression "at the beginning of 2009" in accordance with general linguistic usage. According to which "at the beginning of 2009" refers to a point of time not later than within the first three months of 2009. Had a later period been intended, wording such as mid 2009 would have been used. Thus, the Board is convinced that, on the balance of probabilities, the disclosure to the influential plastic surgeons did take place before the filing date of the patent in suit."
• The Board, earlier in the decision: "it is common ground that the facts relating to the prior use were not under the control of the appellant and that both parties had equal access to the evidence. In accordance with the principle of free evaluation of evidence and in line with the established case law (see CLBA 11th edition, III.G.4.3.2 a)), the Board assessed the relevant facts on the basis of the balance of probabilities."
• I'm not sure if the part in italics is entirely accurate, but for the outcome of the case, this detail does not matter.
• The patent is revoked.

EPO 

The link to the decision is provided after the jump.

R 0010/25 - Petition for review cases

Key points

• The petition for review was filed on  17.04.2025. 
• Oral proceedings were held on 09.01.2026, i.e. within a year.
• The written decision was issued on 07.05.2026 (about four months later). There is no official target for the written decision in petition for review cases, but still. 
• Incidentally, the backlog of petition for review cases has been significantly cleared, and so far, there has been a dramatic drop in new cases in 2026. Case R 2/26 was filed on 11.05.2026. For comparison, 24 cases were filed in 2025.
• My theory is that backlogs themselves made petitions for review attractive: one could easily buy two more years of 'pendency' for a patent (application) for a relatively modest fee, two years that allowed in-house counsel to tell upper management that there was still no final decision on the patent's fate. 
• As I see it, the idea of the EPC 2000 legislator (Diplomatic Conference) was that a petitioner would receive a summons by return mail, with the term of the summons typically shorter than two months (as expressly provided in Rule 109(1) EPC) in the first ex parte stage of the procedure (with a three-member panel). 
• Summons in case R 1/26 have already been issued on 26.03.2026, with the hearing scheduled for 05.11.2026.
• One case from 2023 and two cases from 2024 are still pending. In one case, the oral proceedings were held on 06.10.2025; in another, on 08.12.2025, but there is no written decision yet in either. As said, there is no official target for the written decision.
• The oldest case with no action yet by the EBA is R 7/25, which has been pending since 27.03.2025.

EPO 

The link to the decision is provided after the jump.

T 1319/24 - How many ARs?

Key points

• "The patent proprietor requested that the decision under appeal be set aside and that the patent be maintained as granted (main request) or on the basis of one of auxiliary requests 1 to 5, 6a, 6 to 17, 18a, 18 to 29, 30a, 30b, 30, 30c, 30d, 31 to 33, 34a, 34 to 46, 47a, 47, 48a, 48, 49a, 49, 50a, 50b, 50, 50c, 51a, 51, 52a, 52, 53a, 53, 54a, 54, 55a, 55b, 55, 55c, 56a, 56, 57a, 57, 58a, 58, 59a, 59, 60a, 60b, 60, 60c, 61a, 61, 62a, 62, 63a, 63, 64a, 64, 65a, 65b, 65, 65c, 66a, 66, 67a, 67, 68a, 68, 69a, 69, 70a, 70b, 70, 70c, 71a and 71.

  Auxiliary requests 1 to 29, 30a, 30b, 30, 30c, 31 to 49, 50a, 50b, 50, 50c, 51 to 54, 55a, 55b, 55, 55c, 56 to 59, 60a, 60b, 60, 60c, 61 to 64, 65a, 65b, 65, 65c, 66 to 69, 70a, 70b, 70, 70c and 71 were filed with the reply to the opponents' statements of grounds of appeal on 30 May 2025. Auxiliary requests 6a, 18a, 34a, 47a to 49a, 51a to 54a, 56a to 59a, 61a to 64a, 66a to 69a and 71a were filed with the letter dated 23 October 2025. Auxiliary request 30d was filed during the oral proceedings on 11 November 2025."

• The patent is revoked. Key prior art is a Youtube video D3: "YouTube video of 28 June 2012 providing an overview of the INNOKIN iTaste VV device"

• The Board: 'Whether D3 reflects the subjective impression of a test user, as the proprietor put it, is therefore of little relevance. What matters is the information that the test user, by showing and describing a tested device, conveys to the person skilled in the art in the video D3."

• I guess that even higher numbers of ARs have been seen in EPO appeal cases. Questions to readers: What is the highest number of ARs in a case that you have seen?

EPO 

The link to the decision is provided after the jump.

T 0676/24 - A company pays the SME appeal fee

Key points

• The proprietor, a company, appeals and pays the reduced appeal fee. 
•   "With its communication of 17 June 2024, the board invited the patent proprietor to submit evidence that it was an entity referred to under Rule 6(4) and (5) EPC as mentioned in the above EPO Form 1038. Reference was made to point 4 of the decision of 14 February 2023 in case T 1678/21."
• The proprietor must file the balance sheet and official statements about the parent company and other group companies. 
• The Board:  "There is no provision corresponding to former Rule 6(5) EPC concerning the definition of micro, small and medium-sized enterprises in the Implementing Regulations amended by the Decision. However, section II.7 of the "Notice from the European Patent Office dated 25 January 2024 concerning fee-related support measures for small entities" (Official Journal EPO, 2024, A8) corresponds to former Rule 6(5) EPC. "
• The Board applies the guidance from the Notice of the EPO (which is not binding on the Boards by the way).
• " Number of employees - The board is satisfied that the patent proprietor's submissions in this regard are supported by the evidence on file. They cover the relevant periods 2022 and 2023 (see point (b) below). For the board it has thus been established that the patent proprietor, even including both companies in which it is a shareholder (Q-Services and Coim Tech) employs far fewer than 250 employees."
• "The proprietor has also established that no more than 25% of the capital of the three companies is held directly or indirectly by another company that is not an SME. The reason being that Q-TECH S.r.l. is owned by three natural persons. " (the owners are mentioned by name in the decision).
•  Turning to the declaration: "Rule 7b(1) EPC requires no declaration of eligibility for a reduction of the appeal fee. Nor is there any such requirement in the item 11 of Article 2 RFees specifying the reduced fee. Nor has the board detected any other legal basis. Cf. the analogous conclusion for former Rule 6(6) EPC in T 1678/21, point C.3.1 and the conclusion in T 553/25 for Rules 7a and 7b EPC." 
• "It follows from the previous section (b) that the requirement of a declaration in the section entitled "Declaration of entitlement" of the Notice (points 3 to 5) has no legal basis. "
• The appeal is also allowed. The OD apparently did not decide on the latest amended set of claims.
• "The board concludes from the above that the decision under appeal is based, inter alia, on a request relating to the patent as granted rather than on the request filed by the patent proprietor during the oral proceedings before the opposition division." 
• The appealed decision is set aside, the case is remitted, and the appeal fee is refunded.

EPO 

The link to the decision is provided after the jump.

T 1844/23 - Sufficiency of second medical use claim

Key points

• Filing date 15.03.20052025, revocation in opposition appeal on 02.12.2025, written decision 24.02.2026. Filing as a divisional application in March 2010 (just before the amendments of Rule 36, indeed).
• The Board, in machine translation: "The patent in suit lapsed in all contracting states during the appeal proceedings because the patent term of 20 years from the filing date, as defined in Article 63(1) EPC, expired on March 14, 2025. According to Article 76(1) EPC, the filing date is the filing date of the parent application. Following a corresponding notification from the Board, both the patent proprietor and several opponents requested, within the prescribed time limit, that the proceedings be continued in accordance with Rule 84(1) EPC."
• "Claim 1 of the patent is formulated in the form of a second medical use under Article 54(5) EPC and reads as follows: "Pharmaceutical composition comprising an effective content of antioxidants, for use in a method for protecting the skin from damage caused by infrared radiation, wherein the damage is caused by activation of the formation of matrix metalloproteinase-1."
• The alleged surprising insight is that IR radiation in sunlight, not only UV light, causes the formation of matrix metalloproteinase-1 through reactive oxygen species, as I understand it.
• The claim illustrates that a second medical use claim does not identify the compound by name or in any chemical way. It just says "antioxidant".
• The Board: "In the area of ​​patent claims formulated as medical use claims under Article 54(5) EPC, case law has developed such that the mere possibility of replicating the use is insufficient [under Article 83]. "
  "In the present case, it is therefore not sufficient if, as the appellant [proprietor] argues, the person skilled in the art could have achieved the claimed prophylactic effect more or less automatically on the filing date by applying a sunscreen conforming to the claim. Rather, it is required that, for the claimed invention to be sufficiently disclosed, the therapeutic or prophylactic activity of the substances or mixtures defined in the claim must be demonstrated or substantiated to the person skilled in the art in some way in the patent application itself. How exactly this is to be done—whether by direct experimental proof, by technically verifiable reasoning, or in another suitable manner—may then depend on the individual case. The reference made by the Opposition Division to the statements in point 77 of G 2/21 and the decisions of the Boards summarized therein is in any case justified."
• This body of case law also supports the novelty of some second medical use claims, even when a clinical trial directed to exactly the claimed medical indication had been published as prior art (albeit without results). 
• "This required proof or substantiation naturally refers to the therapeutic/prophylactic use defined in the claim as a whole, and not merely to parts of a mechanism postulated for the effect. This seems so self-evident that it is not even explicitly emphasized in the cited case law. In any case, the therapeutic effect mentioned in point 77 of G 2/21 obviously refers to the disease defined in the claim." 
• In the case at hand, the following mechanism was known: UV light → reactive oxygen species → MMP-1 → skin damage. However, the alleged link between IR radiation (as recited in the claim) and reactive oxygen species was not known, and this step constituted step (i).
• " Rather, proof or substantiation of a therapeutic or prophylactic effect of antioxidants in the skin damage defined in the claim must also relate to the fact that the entire postulated mechanism, i.e., also step (i), is actually present in the disease to be treated. "
• "Therefore, contrary to the appellant's submissions, the patent application does not disclose a technically comprehensible concept for the claimed further medical use of the antioxidants with regard to the claimed medical use. "
• "the appellant [proprietor] referred to various technical literature, scientific publications, test data, and advertising brochures concerning some of the products distributed by the opponents, in which the teaching described and claimed in the patent had subsequently been confirmed. 
• The Board: " The requirement of sufficient disclosure must, however, be met on the filing date. A lack of disclosure on the filing date cannot be remedied by subsequent information; see, for example, G 02/03, point 2.5.3 of the grounds for the decision. It was undisputed that, in the present case, subsequently submitted data cannot be used to remedy a deficiency in the disclosure of the patent in suit or the corresponding patent application that existed on the filing date. "

EPO 

The link to the decision is provided after the jump.

BoA Report 2025

Key points

• A bit hidden on the EPO website, the Boards' annual report for 2025 was published.
• "The number of pending cases older than 24 months decreased from 729 at the end of December 2024 to 234 at the end of December 2025." In 2020, there were 4208 pending cases older than 24 months. The share of backlog cases (older than 24 months) decreased from ~ 50 % in 2021 to 10.5% in December 2025.
• "The technical boards of appeal received 1,477 cases in 2025 (20 fewer than in 2024) and settled 2,646 cases". The number of incoming cases was stable.
• The improvement in timeliness and the backlog clearance is absolutely impressive. 
• "In the context of his reappointment, the PBoA outlined the following priorities for what will be his third term: addressing the challenges arising from the incoming workload level, ensuring the smooth relocation of the BoA to the centre of Munich, modernising the BoA's case management system and fostering the harmonisation of procedural and patent law."
• "The PBoA has mandated a task force to propose timeliness objectives applicable as of 2027. The task force is composed of members and chairpersons of the BoA, as well as representatives from Administrative Services"
• I hope that user organisations will be involved in a later stage. 
• For example, it may be good to set a target for clearing cases older than 24 months, e.g., that all cases older than 30 or 36 months are individually monitored at the BoA management level for progress. 
• The report contains no information about the pendency's starting point. It may be the receipt of the respondent's reply in inter partes opposition cases, but I don't know for sure. 
• The report contains only a brief statement about the EBA's handling of petition for review cases: more cases were cleared than were received. That was indeed quite an achievement last year. 
• On a separate note, 4.0% of cases are in French, and about 20-25% are in German.

EPO 

The link to the document is provided after the jump.

R 0013/25 - Decision TBA to hold AR inadmissible

Key points

• The EBA considers a petition for review inadmissible because no timely objection was raised under Rule 106 EPC.
• The EBA, in the German original:  "Gemäß dem Protokoll der mündlichen Verhandlung wurde die Entscheidung der Beschwerdekammer, die Hilfsanträge 9-11 nicht in das Verfahren zuzulassen, während der mündlichen Verhandlung verkündet, bevor die Ausführbarkeit der Erfindung gemäß Anspruch 1 des Hilfsantrags 5 diskutiert wurde (Seite 3 des Protokolls). Bereits zu diesem Zeitpunkt, spätestens aber vor Ende der mündlichen Verhandlung, hätte die Antragstellerin die angebliche Verletzung des rechtlichen Gehörs rügen müssen."
• As a comment, suppose the TBA announces a "decision" (as opposed to a conclusion) to hold a submission admissible in the course of oral proceedings. Can the TBA subsequently change its decision if a party thereafter -  but still during the oral proceedings -  raises an objection under Rule 106? 
• I admit that the text of Rule 106 does not clearly distinguish between these situations. It requires that "an objection in respect of the procedural defect was raised during the appeal proceedings and dismissed by the Board of Appeal". That is, of course, still possible, even if the orally announced decision to hold the submission inadmissible is already res judicata.
• Of course, a TBA may also announce a "conclusion" that a submission is not admitted during oral proceedings (the difference being that after a conclusion, the debate may still be reopened in certain circumstances).

EPO 

The link to the decision is provided after the jump.

T 0257/24 - Amended description, support under Art. 84

Key points

• A case with description amendments, Art. 123(2) and the support requirement of Art. 84. 
• This is an appeal against a decision to refuse a patent application.
• "The main request was filed with a letter dated 11 August 2021. It includes an added figure 4 which is based figure 3 as originally filed, but in which the parallel inductor/capacitor (LC) resonant circuit is modified to a series LC resonant circuit. The main request further includes amended pages 12 to 14 of the description in which, additionally, new figure 4 is described in a manner identical to originally filed figure 3, albeit replacing parallel LC resonant circuit with series LC resonant circuit."
• "The Board is not persuaded by the appellant's argument that page 13, lines 6 to 11 of the application as filed directly and unambiguously discloses, as an alternative to the embodiment of figure 3, a complete embodiment in which the resonant circuit comprises a capacitor and an inductor connected in series."
• "The Board also does not agree with the appellant that the original application contains an evident error in figure 3 and page 10 whose correction necessarily yields a resonant circuit comprising a capacitor and an inductor connected in series. "
• "It follows that the new figure 4 and description passages of the main request and of auxiliary requests 3, 6, 9, 13 and 14, as well as the claims of auxiliary request 12, insofar as they introduce a concrete series-LC embodiment, add subject-matter extending beyond the content of the application as filed.  
• "Auxiliary request 15 corresponds to the application documents as published. The objections under Article 123(2) EPC directed to added figure 4 and the amended description are therefore irrelevant for that request. However, the objections under Article 84 EPC [see below] remain valid. The published claims still define the grounding merely as comprising a "resonant circuit ... resonating at the first undesired frequency", without specifying the technical features necessary to delimit the claimed solution in a manner supported by the description. Since the description as published discloses only the specific parallel-LC embodiment, auxiliary request 15 likewise lacks support in the description and omits essential features. "
• Regarding Art. 84: "The Board agrees with the examining division that, in the context of the claimed invention, the broad term "resonant circuit" is not supported by the description and that essential technical features are missing from the independent claims, contrary to Article 84 EPC. The application as filed describes only one detailed embodiment of the resonant circuit, namely a circuit with a capacitor and an inductor arranged in parallel. No further concrete example of a resonant circuit at the claimed grounding location is disclosed. The claims, however, are not restricted accordingly and cover an unjustifiably broad range of possible resonant circuits. It is therefore not clear from the claim wording which specific circuit realisation is meant to solve the identified technical problem."
• "Nor can an unduly broad claim be rendered compliant with Article 84 EPC merely if the skilled person disregarded certain embodiments as unsuitable. The requirement of support by the description is not met where the claims extend far beyond what the description teaches as a concrete realisation of the invention."

EPO 

The link to the decision is provided after the jump.

T 1239/03 - and G 1/25

Key points

• In the run-up to the hearing on pending referral G 1/25 (hearing this Friday, 8 May, live stream link can be found here), the EBA issued a preliminary opinion on 11.03.2026 (indicating its intention to confirm the current practice of requiring description amendments) and invited the parties to comment by 17.04.2026. Several TPO's were filed by that date. One (anonymous) TPO drew attention to decision T 1293/03 (which was published on 02.01.2007).
• In that case, the proprietor deleted two examples from the patent during the oral proceedings before the |OD, seemingly by way of voluntary amendment. For the examination of whether this amendment complied with Art. 123(2), the Board considered it to be relevant that there was an ambiguity in the claims as granted. The Board reasoned that the skilled person would have to consult the description to establish the correct interpretation of the claim (i.e., in effect the same as under the current case law based on G 1/24). The Board also held that the two deleted examples were relevant in that context and that the skilled person would likely adopt a particular interpretation of the claim based on the information contained in those examples (which was, perhaps, precisely the reason why the proprietor wished to delete those examples). Therefore, the amendment deleting those examples was held to contravene Art. 123(2) EPC.
• Turning to the pending referral G 1/25, the EBA's preliminary opinion is to confirm the current practice that when the claims are limited, the description must be amended to conform. Suppose the EBA maintains this view in their final decision, it remains to be seen if this practice follows directly from the Articles of the EPC, or is of a more administrative nature such that the Administrative Council is competent to regulate the matter in the Implementing Regulations, and if the EBA in their decision gives a view on this point or leaves it open (disclosure: I submitted an amicus brief [link fixed] in which I discussed that Rule 48(1)(c) EPC is the pertinent provision).
• Perhaps the decision in case G 1/25 will not (and should not) be the last word on the balancing of the factors of quality (in terms of consistency), efficiency, and risks (under Article 123(2)/(3) EPC) that description amendments involve. 
• In the end, any rule under the EPC is legitimised not by being cast in stone but by being open to legislative debate and democratic political decision-making by the competent body - either the AC or a Diplomatic Conference.

  

Summary of the case

• The proprietor filed an auxiliary request wherein Examples 2 and 3 were deleted from the description. The OD decides to maintain the patent in amended form based on that auxiliary request. The opponent appeals.
• "[The opponent] argued that the deletions from the specification of the patent in suit carried out by the Patent Proprietor in the opposition proceedings, in particular the deletion of Examples 2 and 3 of the patent in suit, would have changed the meaning of Claim 1 which amounted to an extension of the patent in suit beyond the content of the application as filed and would, therefore, contravene Article 123(2) EPC, "
• "In view of the above arguments, statements and findings, the Board takes the view that (i), in order to understand the disclosure and teaching of the patent in suit, it has been necessary for the skilled reader to interpret the percentage range of the ethylene content in the elastomeric copolymer as defined in Claim 1 on the basis of the description, the general part of which was not, however, helpful in this respect, and, therefore more particularly, on the basis of the examples presented in the application as originally filed as describing preferred embodiments (page 12, line 16). He would have derived, namely from the disclosure in those Examples 1 and 3, that the patent application as filed lent a certain preponderance to interpreting the percentage value given for the ethylene content of component (b) as mol percent rather than weight percent, in particular since Example 3 did not comply with the interpretation of the percentage as being related to the weight (section VIII (4), above).
• "In addition to its explicit statement to this end (sections II (2) and VIII (3), above), the Respondent/Patent Proprietor has tried, by deleting Example 3 in particular, to give preponderance to an interpretation of the percentage value as weight percent. Although neither of the two interpretations can be made with certainty - be it before or after the amendment - there is a shift in the way the claim might be interpreted. Prior to the amendment, there was a preponderance for the interpretation "mol percent" (cf. sections VIII and 3.2.3, above) which due to the deletion of Example 3 has shifted towards "weight percent"."
• "In the Board's view, Article 123(2) EPC must be interpreted as referring to the patent (or application) as a whole rather than to the claims only. This finding proceeds directly from the clear wording of the Article. Hence, it is not crucial in which part of the patent (or application) an amendment has been carried out, but only whether the overall change in the content of the patent (or application) results in the skilled person being presented with information which is not clearly and unambiguously presented in the originally filed application, even when account is taken of matter which is implicit to a person skilled in the art."
• "It is clear, however, that the Patent Proprietor by deleting Examples 2 and 3 intended to have the percentage of ethylene content interpreted as weight percent. In such a case where it is certain that a shift in the interpretation of the claims has occurred, but uncertain if this would lead to an addition of subject-matter, the Board takes the view that it should be incumbent upon the Patent Proprietor or Applicant as the author of such amendment(s) to demonstrate that by making the amendment(s), the conditions of Article 123(2) EPC have been complied with."
•  "In the case at issue, the Patent Proprietor was, however, unable to demonstrate that before and after the amendments, the percentage value could have been consistently interpreted as "weight percent". Therefore, it must be concluded that the author of the amendments in the patent in suit, ie the Respondent, has not discharged the burden of proof which was on him."
• "the deletion of those two examples in order to exclude the possibility of interpreting the relevant percentage as mol percent provides a lateral shift of information corresponding to the extension of subject-matter beyond the content of the application as filed (Article 123(2) EPC). [...] it clearly shifts the gist of the patent in suit as defined in any one of Claims 1 to 13 [...], despite the fact that their wording has not been modified in this respect. In other words, the deletion of Example 2 and, in particular, of Example 3 amounts to the provision of an aliud."
• The proprietor was the respondent, and no auxiliary request was filed in the appeal that re-instated the two examples. The patent was revoked. 

EPO 

The link to the decision is provided after the jump.

T 0618/23 - Pages 120-125 of the SoG do the job

Key points

• The OD decided to maintain the patent in amended form based on AR-25a. Both parties appeal.
• The Board, in machine translation: "the patent proprietor argued, among other things, that the opponent's statement of grounds of appeal, contrary to Article 12(3) of the Rules of Procedure of the Boards of Appeal, did not clearly and concisely explain why the contested decision should be set aside. Instead, it dealt with extraneous matters (such as the proceedings concerning the parallel German patent 10 2015 117 403 before the Federal Patent Court), addressed "an unmanageable number of different, partly equivalent lines of argument" and failed to provide a problem-solving approach for any of these lines of argument."
• "The Board notes, however, that the appellant has sufficiently explained, at least on pages 120 to 123 of the statement of grounds of appeal [ that had in total 134 pages], why the contested decision should be set aside and, in particular, why claim 1 of granted auxiliary request 25a, based on E7 in combination with E13, does not involve an inventive step. While the appellant's submissions are extensive, they are nevertheless sufficiently substantiated. The mere fact that the statement of grounds of appeal contains a number of irrelevant statements alongside the arguments relevant to the decision does not render the appeal inadmissible."
• In the statement of grounds (SoG), the opponent first attacked the patent as granted (p. 11), citing extensive prior art that was no longer relevant for AR-25a (as I understand it). The opponent then addressed AR-1 (p. 84) and all subsequent auxiliary requests, eventually arriving at AR-25a on p. 120.
• In the opponent’s SoG, an attack against requests ranked higher than the auxiliary request held allowable by the OD is indeed an "irrelevant statement", according to the majority line of case law (as I understand it).


• The Board first deals with the claim requests in the proprietor’s appeal and then turns to the set of claims held allowable by the OD (and contested in the opponent’s appeal)."The Board concludes that the subject matter of claim 1, starting from E7 in combination with E13 and the general technical knowledge, does not involve an inventive step."
• The Board then turns to lower-ranking requests, where novelty over E2 becomes an issue. I have not studied this part of the decision in detail.
• The patent is revoked.

EPO 

The link to the decision is provided after the jump.

T 1285/23 - Fighting again before the ED

Key points

• Now that the discussion of the former designation fee per designated state has been removed from the 2026 edition of the Guidelines, this decision remains noteworthy. It was published in October 2025.
• In this case, the applicant had withdrawn the designation of GB in the parent application by letter of 02.03.2017, after the Rule 71(3) Communication. The decision to grant was issued on 16.06.2017, and the mention of the grant on 12.07.2017. The patent was opposed.  The OD decided to maintain the patent in amended form. The opponent appealed. The proprietor disapproved of the text of the patent. The parent patent was revoked. 
• The proprietor filed a divsional application on 05.07.2017. On 23.02.2018, the applicant submitted a letter about the designated states (after the application was published on 10.01.2018). The Receiving Section issued a decision on 22.05.2018 that GB is not designated, and made it open to appeal. The Board rejects the appeal in 
• The search report was also published on 10.01.2018. The examination fee was paid on 06.07.2018. Hence, on 22.05.2018, the Receiving Section was competent.
• The Board rejected the appeal against the decision of the Receiving Section (decision J 3/18, issued on 19.08.2020, identical to decision J 3/20 in a parallel divisional case (blog post).
• The Legal Board held that "an interpretation of Article 76(2) EPC in accordance with recognised rules of interpretation shows that only those states that had been designated in the earlier application at time of filing the divisional can be designated in the divisional"
• Further, "During the oral proceedings the appellant presented submissions concerning the protection of its legitimate expectations which had not been presented before. ... In the case on file the board used its discretion not to admit the new submissions because the appellant could and should have presented the facts that form the basis for the alleged protection of legitimate expectations earlier in the proceedings."
• Examination starts on 09.09.2020, with an Intention to grant. On 20.10.2020, the applicant requests that the Examining Division consider GB to be designated.
• The ED decides on the matter on 21.03.2023 (decision). 
• The applicant appeals.
• "During the oral proceedings before the Legal Board of Appeal the appellant sought to rely for the first time on the principle of good faith. They stated that they had relied on the communication dated 10 August 2016 concerning the application which was eventually the subject of decision J 14/18. This case concerned the then co-pending application no. 16174992.4 ("the co-pending application"). In that communication the EPO had listed GB as one of the designated states."
• "The appellant did not dispute that a decision of a Legal Board of Appeal concerning a decision of the Receiving Section could in principle also have a binding effect, or an effect of res judicata, on an Examining Division when the application proceeded to that division. However, it argued that its request was now based on the principle of good faith. In J 13/18 the Legal Board of Appeal had never considered that line of argument in substance, but had based the dismissal of the appeal, and thus the refusal of the request to add GB as a designated state, solely on the interpretation of Article 76(2) EPC. There could thus not be a binding effect, under Article 111(2) EPC, of that decision on the Examining Division when they considered that request on a different legal basis, namely the principle of good faith. "
• "The Board disagrees. In J 13/18 the Legal Board of Appeal dismissed the appeal. By doing so it upheld the finding of the Receiving Section not to include GB as a validly designated state in the application. Decision J 13/18 became final when it was issued at the end of the oral proceedings. "
• "The subject-matter of decision J 13/18 was the determination of whether the Receiving Section's refusal to add GB as a validly designated state to the application was correct or had to be overruled. In its decision the Legal Board of Appeal considered whether Article 76(2) EPC could be interpreted such as to allow the appellant's request, and decided not to admit the lines of argument presented by the appellant based on the correction of errors and on the principle of good faith. By dismissing the appeal the Legal Board of Appeal issued a conclusive decision on the request of the appellant to include GB as a validly designated state in the application, rather than admitting the late filed lines of argument (including that of the principle of good faith) and remitting the case to the department of first instance for further prosecution."
• The Board considers the matter, hence, res judicata by J 13/18.
• "Thus, even if the Board applied Article 111(2) EPC to the case in hand, this would not have altered the Board's conclusion."
• "For the reasons set out above, the Examining Division was not competent to decide in substance on the appellant's request to add GB as a validly designated state in the application. The decision is void and is formally to be set aside."
• "The Board concluded above that in view of the effect of res judicata emanating from J 13/18 the Examining Division was not competent to decide in substance on the appellant's request in question."
• "The Board is equally bound by this effect. As a consequence, the appellant's request to add GB as a validly designated state in the application is inadmissible."
• The Board hence decides, in the order of the decision, that "The decision under appeal is set aside. The request to add Great Britain as a validly designated state in the application is refused as inadmissible."
• "Thus, even if the Board applied Article 111(2) EPC to the case in hand, this would not have altered the Board's conclusion."
• Hence, the Board did not apply Article 111(2) EPC to the case at hand.
• The Board sees no difference in facts that would suspend the binding effect under Article 111(2) EPC
  
  
• The appeal fee is reimbursed. "By issuing a decision on a matter in respect of which it was not competent, the Examining Division committed a substantial procedural violation. Whilst the appellant did not obtain the full legal redress sought by its appeal, the Board nevertheless had to set aside the impugned decision."
• "the Board concurs with the body of case law according to which reimbursement of the appeal fee may be ordered based on the principle of good faith, even if the appeal was not allowed and thus one of the conditions of Rule 103(1)(a) EPC was not met (CLB, V.A.11.14)."

EPO 

The link to the decision is provided after the jump.

T 0441/23 - Respondent withdraws request for oral proceedings

Key points

• This decision was published already in February 2025.
• In Visser's Annoted EPC, 2025 edition, we write: "According to T488/18 and T598/19, partial reimbursement of the appellant’s appeal fee can also be based on the withdrawal of a request for oral proceedings by another party to the appeal proceedings (e.g. a respondent) because R.103(4)(c) refers to ‘any request’. However, T777/15 and T795/19 have come to the opposite conclusion, i.e. that the appellant must have timely withdrawn its own request for oral proceedings to benefit from partial reimbursement."
• The present decision:  "Since the respondent's withdrawal of the request for oral proceedings was made within one month of notification of the communication issued by the Board in preparation for the oral proceedings, both conditions of Rule 103(4)(c) EPC, that any request for oral proceedings is withdrawn within one month of notification of the communication issued by the Board of Appeal in preparation for the oral proceedings and no oral proceedings take place, are met  [and the appeal fee is reimbursed in part to the appellant]. It makes no difference that the withdrawing party and the appealing parties are not the same (cf. T 517/17, reason 6; T 488/18, reason 8). Hence, 25% of the appeal fee is to be reimbursed to each appealing party."
• 
  

EPO 

The link to the decision is provided after the jump.

R 0002/25 - Length of procedure

Key points

• This decision dismissing a petition for review was taken by a three-member panel during oral proceedings held on 29.09.2025.  The decision was issued in writing on 10.02.2026.
• There is no public or official target for how long decision writing in R cases should take.  Given that in three-member panel decisions, the decision is to unanimously reject the petition as being clearly unallowable and/or clearly inadmissible, the writing of the decision should not be very difficult - it can't be a borderline case. Given the President of the BoA being the Chair in this case, and considering the legislative purpose of  Rule 102 EPC - see especially Rule 102(1) EPC, I'm still surprised it took more than three months. 
• " The petition for review concerns decision T 0314/20 ... dated 16 November 2023 (the decision under review). The decision was notified on 20 December 2024."
• It was Board 3.3.04 that needed more than a year to write the decision. This is, of course, well beyond the period of three months specified in Art 15(9). It also caused a significant delay in the petition for review procedure by more than a year. 
• One of the parties had filed a request for acceleration of the appeal proceedings after the oral proceedings and after the oral decision had been taken. The TBA denied the request and replied that "In light of the above, the Board will issue the written reasons for its decision at a time that is consistent with its members' workload, and in any event not before March 202[4]." Of course, the Board needed until December 2024.
• If we infer from this remark that the delay was not due to, e.g., a Board member's illness, but to 'workload', we may observe a broader 'management' issue under Board 3.3.04 (at that time).  
• I'm not sure whether Board 3.3.04 currently better meets the target of Art. 15(9) RPBA.
• To be clear, I think it is also the responsibility of the Board of Appeals Unit's management to monitor whether any TBA is overloaded or experiencing exceptional circumstances (e.g., board members being unavailable due to health reasons).
• The opposition was filed in 2017. The entry into the EP phase was in 2009.

EPO 

The link to the decision is provided after the jump.

T 0639/23 - Lapse of patent and continuation opposition

Key points

• This decision was published in December 2025.
• The OD decided to maintain the patent in amended form. Both the opponent and the proprietor appealed. 
• The Board, in machine translation: "By letter dated October 14, 2025, the patent proprietor withdrew his appeal and his request for oral proceedings. At the same time, he declared that the patent had lapsed in all contracting states in which it would have been effective (DE, FR, AT, IT) by declarations of renunciation." 
• "In a communication under Rule 84(1) EPC dated 3 November 2025, the Board considered the documents submitted with the letter of 31 October 2025 to be sufficient to clearly demonstrate the effective waiver in all Contracting States in which the patent was last in force. The appeal proceedings could therefore be continued at the request of the opponent, provided that such a request was filed within two months of service of this communication."
• "By letter dated 10 November 2025, the opponent requested the continuation of the appeal proceedings."
• "By letter dated 17 December 2025, the patent proprietor commented on the opponent's letter of 10 November 2025". The proprietor submitted arguments that the proceedings should be terminated without a (substantive) decision.
• "The patent proprietor contested the opponent's arguments and, in its letter of December 17, 2025, asserted that the opponent had failed to sufficiently demonstrate a concrete, seriously threatened infringement and thus a concrete interest in legal protection. "
• " According to Decision T 598/98, Guidelines 1 and 2 and Reasons 1.6 to 1.8, in addition to the (in this case disputed, see above) existence of a legitimate interest of the opponent in the retrospective revocation of the patent, the Board's discretionary decision under Rule 84(1) EPC may also take into account ...."
• I still think T 598/98 conflated German national practice with the EPC, or too readily assumed that German practice in cases of lapse of the German patent is to be applied equally under the EPC.
• I don't think Rule 84 gives the OD discretion to continue the opposition procedure if the opponent requests that the OD take a written decision on the merits. In particular, if Rule 84 is interpreted to give the OD to discretionarily terminate the procedure against the request of the opponent (in case of a lapse), then Rule 75 EPC is meaningless ("An opposition may be filed even if the European patent has been surrendered in all the designated Contracting States or has lapsed in all those States."). Rule 84 must be interpreted (also) using the systematic method of interpretation.
• See my extensive comments on T 598/98 in this blog post.
• The Board decides to continue the procedure. "The "legal added value" of a decision on the merits, as demanded by the patent proprietor, compared to the mere discontinuation of the proceedings, is also present if the proceedings are continued, since, unlike discontinuation, the effect of a patent that is not valid is eliminated retroactively. Finally, the patent proprietor's argument that there is no concrete impact on a third party in this case is also unconvincing. Such a thing is not decisive for the continuation of the proceedings, since the objection (appeal) procedure is by its nature a review procedure for which a concrete impact on the objector or third parties is not necessary."
• The Board decides to revoke the patent.
• I don't know why the proprietor did not disapprove of the text. It could have been related to the mutual requests for a different cost apportionment (the Board refused both, though likely Rule 84 does not preclude a decision under Art. 104). Teva/Copaxone should also be considered, of course. 

EPO 

The link to the decision is provided after the jump.

T 0538/24 - The photograph is in color for the Board

Key points

• The Board, in translation: "in the opposition proceedings, the object of the alleged prior use, Recaro, was inspected during an oral hearing held as a videoconference. The Opposition Division rejected the opponent's request for an in-person hearing, which was based on the planned inspection, because it considered the conditions for an in-person hearing, as defined in the decision of the President of the EPO (OJ EPO 2022, A103), to be not met."
• " The appellant argued that it had been virtually impossible to explain the mechanics of the object under consideration in a manner as adequate as would have been possible in a face-to-face event. This was also evident from the inadequate black-and-white photographs in the transcript of the taking of evidence provided to her, which were partly of poor quality and partly blurry."
• The appellant requests a new inspection of the device, in person.
• The Board refuses the request.
• The Board: "The alleged poor quality of the photographs taken during the inspection with a high-resolution camera does not relate to the inspection itself, but rather to its documentation and transmission to the parties. In fact, the Chamber has received the photographs in good quality and in color."
• It is strange, to say the least, that the Board looks at a different picture than the parties. The question is: how do you know what the Board is actually looking at, during vico oral proceedings? Perhaps it will be less of an issue now that documents are made visible in color in the public online file.
• The primary reason for refusing the request for a new inspection is that "As the respondent argued, there was agreement at the end of the inspection regarding the functionality of the prior use by Recaro"

EPO 

The link to the decision is provided after the jump.

T 0514/24 - Deleting from lists

Key points

• Claim 17 is directed to a chemical material and contains six lists of elements. In AR-2a, the proprietor deletes elements from every list.
• Three out of eight elements are deleted in list II, 3 of 10 elements in list III, two out of 5 elements in list IV, and four out of six elements are deleted in list IV.
• The Board, in translation, "Claim 17 combines an arbitrarily chosen subgroup of the possible compositions of the metal oxide layer with an equally arbitrarily chosen subgroup of the possible laser types, without specifying a basis for the remaining combinations. The compatibility of this multiple deletion with Article 123(2) EPC is not immediately apparent and should have been substantiated by the appellant (Article 12(3) RPBA)."
• The decision contains additional reasoning on Article 123(2) and amendments consisting of selecting alternatives from the claim, but the above point appears to be crucial. 
• This reasoning is, as such, unremarkable. However, the auxiliary request serves to make the claim novel over a prior right under Article 54(3) EPC.
• The difficulty for me is that an undisclosed disclaimer would have been possible in these circumstances, under G 2/03 and G1/16 (it seems to me). But deleting elements from the recited lists is not. 

• EPO 

The link to the decision is provided after the jump.

T 0832/18 - Post-published evidence and Art. 83

Key points

• The decision is dated 09.12.2024; by Board 3.3.04,  and the written decision was issued 30.10.2025. I assume there were exceptional circumstances, such as the illness of a Board member.
• The interesting point is the importance of a post-published document for the sufficiency of disclosure of an in vitro diagnostic method claim."
• ""1. A method for determining the likelihood of effectiveness of an EGFR tyrosine kinase inhibitor [a class of medicaments] to treat cancer [, the method] comprising: determining whether the erbBl gene obtained from a biological sample obtained from said patient comprises at least one nucleic acid variance, selected from [ a list of mutations] 

  wherein the biological sample is a sample of tissue or fluid isolated from the patient and wherein the presence of the at least one nucleic acid variance indicates that the EGFR tyrosine kinase inhibitor is likely to be effective;

• "Post-published document D132, ... shows that lapatinib, another EGFR-TKi inhibitor, is a better inhibitor of wild type EGFR (EGFR-wt) than of EGFR-L858R mutant ...  the board considers that ... that lapatinib has been shown to be less effective, or ineffective, in inhibiting EGFR-TK and in treating cancer in patients with a nucleic acid mutation according to claim 1(b) or (c), compared to patients who do not have such a mutation.
• "Documents D134, D132, D50 and D72 thus provide serious doubts based on verifiable facts that there is no increased therapeutic effectiveness of EGFR TKis in patients affected with cancer comprising at least one mutation as set out in claim 1. Some TKis, such as lapatinib or neratinib, do not have or have a lower effect on such patients in comparison with patients comprising a wild type EGFR. Hence, the subject-matter of claim 1 of the main request is not sufficiently disclosed (Article 83 EPC)."
• As a comment, it remains interesting that post-published documents cannot be used in some aspects of Article 83, also for functional features (such as second medical use claims), while such documents can be used in other aspects of Art. 83.
• G 2/21, r.77 : "the scope of reliance on post published evidence is much narrower under sufficiency of disclosure (Article 83 EPC) compared to the situation under inventive step (Article 56 EPC). In order to meet the requirement that the disclosure of the invention be sufficiently clear and complete for it to be carried out by the person skilled in the art, the proof of a claimed therapeutic effect has to be provided in the application as filed, in particular if, in the absence of experimental data in the application as filed, it would not be credible to the skilled person that the therapeutic effect is achieved. A lack in this respect cannot be remedied by post-published evidence.
• 
  
• EPO

The link to the decision is provided after the jump.