Key points
- The OD revoked the patent. The proprietor appeals and requests that the impugned decision be set aside because of an alleged substantial procedural violation.
- The Board, in translation: "In the Board's view, it is immediately apparent from the grounds of appeal that the patent proprietor wishes to have the contested decision set aside due to procedural defects, in particular a violation of the right to be heard, and to have the matter remanded to the Opposition Division. In view of the alleged procedural defects, it is irrelevant whether the appeal can also be considered sufficiently substantiated with regard to the key grounds of the decision, namely the inadmissible extension and the lack of clarity concerning the requests admitted by the Opposition Division (see Case Law of the Boards of Appeal of the European Patent Office, 11th edition, 2025, V.A2.6.7.c; T 1020/13, Reasons 1)."
- As a comment, there could also be a rule that the procedural error must not be harmless, i.e., that it could have influenced the outcome of the case.
- CLBA V.A.2.6.7.c cites only one decision, namely T 1020/13.
- I think a distinction should be made between procedural errors that vitiate the entire decision (i.e., wrong composition of the OD, lacking signature to the decision) and a violation of the right to be heard. In the latter case, there should be at least a prima facie argument made why the substantive reasoning was wrong on the point affected by procedural error, and how the outcome of the case could have been different with correct reasoning (to deal with the case that there are two alternative grounds for refusal, only one of them being affected by the alleged violation of the right to be heard).
- The decision is in line with T 0898/24.
- The Board finds no procedural error concerning the main request.
- AR 1 to 91 were not substantiated in the appeal and were not admitted.
- The proprietor's appeal against the decision revoking the patent is dismissed.
EPO
The link to the decision is provided after the jump.
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