T 0792/12 - Interruption by the Board

Key points

• " The fact, as here, that a Board is not convinced by the representative's arguments on a certain matter, and even interrupts the representative to clarify how the representative sees that a certain argument is at all relevant to the claim in question, or to the matter of novelty or inventive step which is being discussed, does not imply that a Board is not listening or is intent on sticking by its provisional opinion.
  In the present case a significant portion of the representative's submissions particularly with respect to the main request, were a simple repetition of the numerous written submissions prior to oral proceedings, and indeed often a repetition of what had been presented already orally but a few minutes earlier. "

EPO T 0792/12 - link

2. Procedural issues

2.1 The appellant's contention in the course of the discussion on the main request, that the Board seemed intent on sticking by its preliminary opinion, seemed not to want to listen to the arguments of the appellant and appeared to lack impartiality in the case by not being convinced by its arguments and interrupting on several occasions, is rejected.

2.2 In accordance with Article 15(1) of the Rules of Procedure of the Boards of Appeal (RPBA), the Chairman of the Board presides over the oral proceedings and ensures their fair, orderly and efficient conduct. When the Chairman sees a need to interject in a party's submissions to ensure that the proceedings are efficiently conducted, in particular to avoid a party repeating arguments, this is done. A Board is not required to passively listen to repetition. In the same way, a Chairman, or indeed any member of the Board, may interrupt when it is felt necessary to ask questions which the Board for example finds important for reaching its decision. The appellant's insistence that the Board not make any interruption during its pleadings, which it considered to indicate a lack of impartiality, is a misconception by that party of what constitutes a fair hearing.

2.3 The fact, as here, that a Board is not convinced by the representative's arguments on a certain matter, and even interrupts the representative to clarify how the representative sees that a certain argument is at all relevant to the claim in question, or to the matter of novelty or inventive step which is being discussed, does not imply that a Board is not listening or is intent on sticking by its provisional opinion. In the present case a significant portion of the representative's submissions particularly with respect to the main request, were a simple repetition of the numerous written submissions prior to oral proceedings, and indeed often a repetition of what had been presented already orally but a few minutes earlier. It is here of relevance to note that, when interrupted on one last occasion so as to limit further repetition, the representative of the appellant himself argued that during his submissions he had in fact made two new points not mentioned in writing (a general reference to T56/87 and a reference to Article 69 EPC - see above, both duly noted and commented upon in the course of the debate by the Board). The objections of the appellant are, at least for these reasons, unfounded.

T 1888/15 - Examination appeal in 1 year

Key points

• Board 3.2.08 (Acton, Alvazzi Delfrate and Keeling) decides an examination appeal in favour of the applicant within a year (Statement of grounds filed on 9 July 2015, so forwarding to the Board by 2 October, decision dated 14 July 2016, notified by letter of 1 August).
• The added term "consisting of"  resolves a clarity issue: "although an alloy does not normally consist of oxide particles, the definition of master alloy in claim 1 ("master alloy consisting of titanium dioxide particles") leaves no ambiguity as to the nature of the "master alloy" used in the claimed method. "

T 1888/15 - link

Reasons for the Decision

1. Main request - Articles 123(2) and 76 EPC

1.1 Claim 1 as amended in appeal is based on originally filed claim 1, clauses 14, 16, 25, 29, 31 and 37 of paragraph [0025] and paragraphs [0021] and [0023] or examples 1 and 2. In particular, paragraphs [0021] and [0023] and examples 1 and 2 disclose a master alloy consisting of titanium dioxide particles. Therefore, the requirements of Article 123(2) EPC are satisfied.

1.2 Since a basis for claim 1 is also to be found in the corresponding passages in the parent application, the requirements of Article 76(1) EPC are likewise satisfied.

2. Main request - Clarity

2.1 Although an alloy does not normally consist of oxide particles, the definition of master alloy in claim 1 ("master alloy consisting of titanium dioxide particles") leaves no ambiguity as to the nature of the "master alloy" used in the claimed method. Therefore, claim 1 complies also with the requirements of Article 84 EPC.

T 1088/11 - Reducing enlarged division

EPO Headnote

In principle, an opposition division may set aside a decision to enlarge its composition pursuant to Article 19(2) EPC (Reasons, point 11.2).
Where an opposition division has been enlarged, but the case is nevertheless decided in a composition of three members, there should be clear evidence on the public file that a decision to set aside enlargement was taken by the opposition division in its four member composition prior to the final decision (Reasons, point 17.3).

Key points

• The lack of a clear decision of the four members of the extended division to reduce the division to again three members constitutes a substantial procedural violation and the decision under appeal is set aside.

EPO T 1088/11 - link

Reasons for the Decision

1. The appeal is admissible.

2. The procedural issues

A decision taken in a wrong composition of the opposition division is not legally valid (T 390/86, Reasons, points 7 and 8), and according to Article 11 RPBA, a board shall remit a case to the department of first instance if fundamental deficiencies are apparent in the first instance proceedings, unless special reasons present themselves for doing otherwise. It therefore falls to the board to determine whether the composition of the opposition division indicated in the contested decision was correct at the time the decision was taken.

T 2453/12 - Two opponents

Key points

• A case with two opponents. The OD held the opposition of O2 to be inadmissible. O1 gave a authorization to the representative of O2. The patent was maintained. O1 filed an appeal, by it's own employee (O1 is a company in an EPC state). This appeal is validly filed. The appointment of a professional representative does not prevent the party from acting through an authorized employee. 
• " Da sich eine Partei niemals durch die Erteilung von Vollmachten das Recht entziehen kann, sich selbst zu vertreten, kann schon deshalb kein Zweifel an der Berechtigung der firmeninternen Vertreter zur Einlegung der Beschwerde bestehen. "

EPO T 2453/12 - link

Sachverhalt und Anträge

I. Das europäische Patent Nr. 1 319 390 wurde mit sechs Patentansprüchen erteilt. []

II. Gegen die Erteilung des Patents wurden gestützt auf die unter Artikel 100 a) und c) EPÜ genannten Einspruchsgründe zwei Einsprüche eingelegt, [].

III. Der Einspruch der Einsprechenden 2 wurde unter dem Namen "ISP Investments LLC" mit der Adressangabe "818 Washington Street, Wilmington, DE 198901, U.S.A." eingelegt.

IV. Nachdem die Patentinhaberin darauf hingewiesen hatte, dass die Firma ISP Investments LLC nicht mehr existiere und die Frage der Rechtsnachfolge unklar sei, beantragte die Einsprechende 2 mit Schriftsatz vom 14. September 2012 eine Berichtigung unter Regel 139 EPÜ ihres Namens und ihrer Adresse im Einspruchsschriftsatz und legte in diesem Zusammenhang die folgenden Beweismittel vor:

T 2365/11 - Change OD day before

Key points

• "  At the beginning of the oral proceedings the chairman of the Opposition Division informed the parties that its composition (chairperson) had changed the day before. [] In the present case, even though the chairman [of the OD] said he had been designated one day before the oral proceedings, neither the appellant (patent proprietor) nor the respondent (opponent) has presented evidence to show that the chairman did not have the requisite knowledge of the file. In the absence of any such evidence, it cannot be assumed that one day was not enough. Whether or not the necessary knowledge can be acquired in one day depends on the technical and legal complexity of the file. This question has to be assessed by the director, together with the member concerned. In the present case, in the absence of objective evidence to the contrary, it has to be assumed that the time available was sufficient.
• In addition, the straw man (apparently) disclosed the name of the real party of interest during the appeal. The patentee alleges that this would jeopardize admissibility of the appeal. The Board decides that it does not. 

T 2365/11 - link 

Reasons for the Decision

1. The appeal is admissible.

2. The invention

[]

3. Admissibility of the opposition

The notice of opposition was filed by a natural person (Dr D.E.). According to the appellant (patent proprietor), the difficulty with the admissibility of the opposition arose from the submission of 24 August 2011 (filed by the opponent's attorney to indicate the language which would be used during the oral proceedings before the Opposition Division) referring to Hisamitsu as the opponent.
It took the view that the law had been circumvented by abuse of due process, because the opponent mentioned was different from that which had filed the notice of opposition. This created ambiguity, in that the identity of the opponent was not clear. This was different from the situation in which the "true" opponent was not known at all, as in the case leading to G3/97 (OJ EPO 1998, 245). D8 showed that Hisamitsu was active in the same field of technology. Moreover, as the declared opponent was acting on behalf of Hisamitsu it did not have full legal capacity, because it could not for instance withdraw the opposition without asking the true opponent, Hisamitsu. Therefore the opposition was not admissible.

T 0055/11 - New arguments at OP

Key points

• Arguing lack of inventive step over D13 in combination with D1, instead of D1 in combination with D13, for the first time at oral proceedings, is a new argument. The Board can admit this new argument at its discretion.

T 0055/11 -  link

Reasons for the Decision

1. The appeals are admissible.

2. Procedural issue

2.1 In the communication referred to in point II above, the board made the comment (see point 8.4) that in the oral proceedings it would be necessary to discuss whether or not the presence of the characterising features of claims 1 and 20 with respect to D1 or D5 imply an inventive step, in particular in view of D11 or D13.

In its reply to this communication, appellant III made an inventive step argument against granted claims 1 and 20 upon the basis of document D1 in combination with document D13.

2.2 During the oral proceedings, when discussing inventive step of granted claims 1 and 20 starting from document D1 and taking into account document D13, appellant I argued for the first time that the subject-matter of said claims also lacked an inventive step starting from document D13 and taking into account document D1.

Thereupon appellant II requested that this new argument should not be admitted into the appeal proceedings.

T 2086/13 - Setting aside and res judicata

Key points

• In this case, the Board had set aside in an earlier appeal the decision of the OD to revoke the for lack of inventive step, because that decision of the OD was insufficiently reasoned. In the first decision, the OD had not admitted insufficient disclosure as new ground, after remittal it did. The patentee argues that the OD should only have decided on inventive step after remittal and not have reopened the debate on insufficient disclosure. The Board does not agree.
• "The board holds that the procedural situation is far simpler. With decision T 306/09, the board decided that the (first) decision of the opposition division was tarnished by a fundamental procedural violation, and had to be set aside. Given that the decision only had a single legal effect, it was then set aside in its totality, including the part related to the admission of the ground of opposition under Article 100(b) EPC. Therefore, during the opposition proceedings following the remittal ordered by T 306/09, none of the decided issues remained, but had to be decided again. The decision did no longer exist, and therefore had no longer any binding effect on the opposition division. In this manner the division was also not prevented from examining again the new opposition grounds." 
• The Board seems correct in that the first OD decision has no effect whatsoever after the remittal - irrespective of the reasons for the remittal. The further aspect is that the Board did not in appeal review the decision to not admit sufficiency as ground of opposition, so that there is no res judicata. Furthermore, the doctrine of reformatio in peius does not extend to each point decided by the OD (e.g. T 327/92, CLB IV.E.3.1.a).

T 2086/13 - link

Reasons for the Decision

1. The appeal is admissible.

[...]

Alleged procedural violation by admitting the fresh ground under Article 100(b) EPC into the opposition proceedings

4. This is the second appeal in relation to the opposition proceedings against European patent No. 1 471 950. The outcome of the first appeal T 306/09 was to set aside the decision of the opposition division and remit the case to the opposition division due to a substantive procedural violation.

4.1 In the decision contested in the first appeal proceedings, the opposition division made use of its discretion not to admit into the proceedings the ground of opposition under Article 100(b) EPC, which had been raised after the nine-month opposition period.

After the remittal ordered by T 306/09, the opposition division admitted said ground into the proceedings, and decided to revoke the patent on that ground.

4.2 The appellant argued that the admission by the opposition division of this ground represented a procedural violation. With decision T 306/09, the board remitted the case "for further prosecution", "further" meaning examining whether any request on file defined an inventive subject-matter, given that the lack of inventive step have been decided by the opposition division with an insufficient reasoning, which the board had found not to comply with the requirements of Rule 111(2) EPC. Since this was the sole point found to be deficient by the board in T 306/09, the opposition division was only allowed to examine on remittal the question of inventive step and, consequently, not to "reopen" other issues such as the admissibility of the ground of opposition under Article 100(b) EPC. The appellant argued that "It is trite law that the findings of a lower tribunal will stand unless specifically overturned by a higher court".

4.3 The board cannot see any such limitation of the scope of the second opposition proceedings, i.e. the proceedings between the earlier and the present appeal. The appellant appear to argue implicitly that the parts of the first decision of the opposition division dealing with other issues beyond inventive step somehow became res judicata. In the opinion of the board, this would result in an untenable situation. In the present case, this would mean that some appeal grounds of the opponent put forward in its appeal of 31 March 2009 against the first decision would be disposed of either without any possibility for an appellate review (see e.g. the opposition ground of extension of subject-matter under Article 100(c) EPC), or if the first appeal decision T 306/09 were indeed considered as "the" appellate review, then such a decision is obviously not reasoned concerning this opposition ground, although it has been properly raised and reasoned in the first appeal. However, the deciding board had no obligation to consider any other issues for its decision on the finding of a substantial procedural violation, given that the first decision only had a single legal effect (the maintenance of the patent in an amended form). This single legal effect had to be revoked as soon as one ground against it were found well founded, and the deciding board did not err when it did not decide on any other issue.

4.4 The board holds that the procedural situation is far simpler. With decision T 306/09, the board decided that the (first) decision of the opposition division was tarnished by a fundamental procedural violation, and had to be set aside. Given that the decision only had a single legal effect, it was then set aside in its totality, including the part related to the admission of the ground of opposition under Article 100(b) EPC. Therefore, during the opposition proceedings following the remittal ordered by T 306/09, none of the decided issues remained, but had to be decided again. The decision did no longer exist, and therefore had no longer any binding effect on the opposition division. In this manner the division was also not prevented from examining again the new opposition grounds.

Use of the opposition division's discretion to admit the ground of opposition under Article 100(b) EPC into the proceedings

5. The appellant further argued that, notwithstanding the arguments under the previous point, the ground under Article 100(b) EPC was not prima facie relevant and, for that reason, the division should not have admitted it into the proceedings.

The opposition division considered this ground not only prima facie relevant but so relevant as to revoke the patent in suit solely on this ground. For this reason alone, the division did not use its discretion to admit this fresh ground of opposition in an unreasonable manner.

Sufficiency of disclosure:

6. Claim 1 of the main request is directed to a method of evaporating a multi-component liquid solution. The method requires a vibrating plate atomiser positioned on a horizontal surface. The atomiser ejects said liquid solution forming a cloud or mist of small droplets, which are allowed to fall back towards said surface, and it is configured to eject the droplets having the largest size to the height H.

The characterising portion of the claim requires a mathematical relationship among:

- the diameter Dp of the largest droplets (in cm)

- the height H at which these largest droplets are ejected (in cm), and

- the vapour pressure Pv of the least volatile component of the liquid (in Pa),

defined by the following inequality:

1.6 x 10**(14) x Dp**(4) / [H x Pv] <= 1

which can be re-written as:

Pv >= 1.6 x 10**(14) x Dp**(4) / H

Thus, the inequality requires the vapour pressure of the component of the liquid having the lowest vapour pressure to be greater than or equal to a value that depends on the diameter of the largest droplets and on the height at which said droplets are ejected.

7. It has not been contested that, in order to carry out the claimed invention, the skilled person needs to choose and combine two physical entities, namely a vibrating plate atomiser and a multi-component liquid solution.

It has further not been contested that the patent in suit does not contain any working example disclosing a specific multi-component liquid solution and a specific vibrating plate atomiser suitable for the claimed method of evaporating.

Both parties agreed that the diameter of the largest droplets Dp and the height H depend not only on the atomiser, but also on the liquid, as they also vary with its density and its surface tension.

The skilled person, trying to perform the claimed invention, is then confronted with the problem of choosing a multi-component liquid solution fulfilling the requirements of the claim.

8. The appellant argued, however, that the changes in Dp and H deriving from the nature of the liquid were negligible and that in fact the sole variable of the inequality to which any attention should be given was Pv, which could vary by various orders of magnitude. The appellant acknowledged that a certain degree of trial and error was required to perform the invention and to find the adequate multi-component liquid solution, but argued that the skilled person, after a failure, will immediately be led to working embodiments by iteration.

9. Even though a reasonable amount of trial and error is permissible when it comes to sufficiency of disclosure, the skilled person has to have at its disposal, either in the specification or on the basis of common general knowledge, adequate information leading necessarily and directly towards success through the evaluation of initial failures.

In the present case, however, the skilled person can only determine by mere trial and error which methods of evaporating a multi-component liquid solution fulfil the inequality required by claim 1. The patent in suit does not provide any teaching on which embodiments could be suitable for the claimed invention or any other guidance which could lead the skilled person towards success.

In fact, the dependency of the variables H and Dp, both on the atomiser and the multi-component liquid solution it contains, makes any prediction difficult. The appellant has not provided any indication on which type of liquid compositions would be suitable for the claimed method other than referring to "liquid fragrances or liquid insecticides" without any further information as to their components. The appellant did not rely, either, on information which could belong to the general technical knowledge of the skilled person at the date of filing, and which could lead that person towards the appropriate type of composition for a particular atomiser. The appellant further acknowledged that the inequality of claim 1 would not be fulfilled by many multi-component liquid compositions on a defined vibrating plate atomiser.

Under these circumstances, the skilled person, confronted with every possible vibrating plate atomiser and every possible multi-component liquid solution, can only find, by trial and error, whether a particular combination of multi-component liquid solution and atomiser fulfilled the inequality of claim 1. In the opinion of the board, this amounts to an undue burden.

The board thus concludes that the claimed invention is not sufficiently disclosed for it to be carried out by a person skilled in the art and that the ground under Article 100(b) EPC precludes the maintenance of the patent as granted.

10. The appellant argued that, even when confronted with a failure, the skilled person would be led to success immediately. If a multi-component liquid solution in a particular vibrating plate atomiser were not to fulfil the inequality of claim 1, the skilled person would recognise that its least volatile component should be left out. If the inequality were still not fulfilled, the one before the least volatile compound should also be removed. This process simply needed to be repeated until a liquid solution could be used in a specific atomiser.

However, even assuming, as alleged by the appellant, that the skilled person only had to remove from a multi-component liquid solution its least volatile component(s) until the inequality is fulfilled, that person would need to start by testing every conceivable composition on every possible atomiser in order to carry out the invention throughout the whole scope of the subject-matter claimed. This level of trial and error amounts to an undue burden for the person skilled in the art.

11. The appellant argued that the respondent had failed to provide examples which could show a lack of accuracy of the inequality of claim 1.

However, the objection explained above does not arise from a lack of accuracy of the inequality but hinges on whether the skilled person had sufficient information in order to select those multi-component liquid solutions suitable for the claimed invention on a specific vibrating plate atomiser.

12. The subject-matter of claim 1 of auxiliary request I is restricted as it requires the multi-component liquid solution to comprise a multi-component liquid fragrance or a multi-component liquid insecticide. The appellant argued that any issue concerning the selection of the liquid solutions suitable for the claimed method should be overcome by the restriction in claim 1 to these specific types.

However, the amount of multi-component liquid fragrances and insecticides at the disposal of the skilled person is vast. Confronted with them, the skilled person does not have any teaching which could lead him to those suitable for the claimed method for the reasons already explained (see point 9 above).

The board thus concludes that the subject-matter of claim 1 of auxiliary request I is not described in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art, with the consequence that this request is not allowable.

13. The appellant acknowledged that the arguments with respect to the sufficiency of the disclosure of the patent in suit applied in the same manner to claim 1 of auxiliary requests II, 3, IV and V.

The board thus concludes that the subject-matter of claim 1 of these requests is not described in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art, with the consequence that these requests are also not allowable.

Order

For these reasons it is decided that:

1. The appeal is dismissed.

T 1184/12 - Accelerated appeal

T 1184/12
For the decision, click here.


Key points

• Accelerated proceedings in appeal can be requested by the parties, but also by the courts of Contracting States. In this case, a Finnish court had requested acceleration of the proceedings.
• Also interesting discussion about novelty and inventive step of a second medical use. 

Reasons for the Decision

3. Request for accelerated processing

The Finnish Market Court had asked for accelerated processing of the present appeal, in view of revocation and infringement actions concerning the patent in Finland. In accordance with the Notice from the Vice-President Directorate-General 3 concerning accelerated processing before the boards of appeal (OJ EPO 2008, 220), the case was accelerated and oral proceedings before the board were scheduled as soon as possible.

[...]

5.2.5 Moreover, although document D1 teaches that the combination formoterol/budesonide provides a "rescue medicine", i.e. teaches that the combination can also be used for symptomatic relief, it does not specifically disclose a therapeutic regime consisting of both regular therapy together with symptomatic relief for a composition simultaneously containing formoterol and budenoside. The board thus comes to the conclusion that the treatment regime as claimed in claim 1 of the main request is not directly and unambiguously disclosed in D1, and this is, according to established case law, enough to render a second medical use claim notionally novel over the prior art (G 2/08, OJ EPO 2010, 456).

T 0740/15 - Termination opposition proceedings

T 0740/15 - [C]
For the decision, click here. 16.11.2015

Key points

• After lapse of a patent, opposition proceedings can only be terminated under Rule 84(1) EPC if the opponent requests so.
• Int this case, " the opponent requested that the opposition proceedings be continued and also maintained his previous request that oral proceedings in accordance with Article 116 EPC be held in the event that the opposition division was inclined to maintain the patent as granted or in amended form. "
• The proceedings were discontinued without oral proceedings.
• Lack of oral proceedings amounts to a substantial procedural violation according to the Board.
• As a note, the OD may have thought that it did not maintain the patent as granted or in amended form, such that the request for oral proceedings did not apply. The Board does not discuss this aspect.
• Lack of reasoning of the decision was also considered a substantial procedural violation.
• The Board also considers that the opposition proceedings should not have been discontinued. As a note, I understand that the opponent referred in its request for continuation to the possibility that the patentee would still pay the national renewal fees (late) or restore the patent, while the decision to discontinue seems to have been taken after the expiry of that period. Of course, the opponent could still have an interest in the opposition because of the retroactive effect of revocation, but the request for continuation did not seem to suggest that this was the case.

For the decision, click here.  

T 2415/13 - Late requests before OD

T 2415/13
For the decision, click here. 13.11.2015

Key points

• Board: "In the present case, the opposition division admitted the first auxiliary request since the amendment made in this request was "neither unforeseeable nor difficult to grasp" . This implies that according to the opposition division, the opponent could be expected to deal with the amendment during the oral proceedings. This is an appropriate criterion to apply when deciding on the admissibility of late-filed requests and the board has no reason to assume - and none has been brought forward by the appellants - that the opposition division applied it in an unreasonable way." 
• Also discussion of Art 123(2) EPC:
  " This finding cannot be altered by the fact that, as argued by the respondents, two instances of the EPO, namely the examining division and the opposition division, had already found that claim 1 did not contain added matter. If this were to stop the board from overturning the opposition division's decision on Article 100(c) EPC, there would be no point in an opponent appealing on the ground of Article 100(c) EPC." 

Reasons for the Decision

Main request

1. Admissibility

T 0379/10 - After petition for review

T 0379/10
For the decision, click here. [C] / DE

Headnote
Bei der Wiederaufnahme des Beschwerdeverfahrens aufgrund einer Entscheidung gemäß Artikel 112a(5) EPÜ ist das wiederaufgenommene Beschwerdeverfahren auf die Behebung des in der Überprüfungsentscheidung festgestellten schwerwiegenden Mangels beschränkt.

Key points

• After resumption of the appeal procedure because of a successful petition for review, the reopened appeal procedure is limited to remdying the serious procedural violation as found by the Enlarged Board.

Sachverhalt und Anträge

I. Das Europäische Patent Nr. 1 487 832 betrifft ein kristallines Mikronisat von Tiotropiumbromid.

II. Die Beschwerde der Patentinhaberin richtet sich gegen die Entscheidung der Einspruchsabteilung, das Patent zu widerrufen.

III. Am Ende der mündlichen Verhandlung vom 5. März 2013 entschied die Kammer in der gegenwärtigen Besetzung, die angefochtene Entscheidung der Einspruchsabteilung aufzuheben und die Angelegenheit an die erste Instanz mit der Anordnung zurückzuverweisen, das Patent mit den Ansprüchen des Hilfsantrags 2 und einer noch anzupassenden Beschreibung aufrechtzuerhalten.

IV. Die Beschwerdeführerin und Patentinhaberin beantragte die Überprüfung der Entscheidung vom 5. März 2013 gemäß Artikel 112a EPÜ durch die Große Beschwerdekammer. Mit der am 26. Mai 2015 zur Post gegebenen Entscheidung vom 8. Dezember 2014 (Rechtssache R 16/13) hob die Große Beschwerdekammer die Entscheidung der Kammer vom 5. März 2013 auf und ordnete die Wiederaufnahme des Verfahrens vor der Beschwerdekammer 3.3.01 an. Den Antrag, die Mitglieder der Beschwerdekammer zu ersetzen, welche an der aufgehobenen Entscheidung mitgewirkt hatten, wies die Große Beschwerdekammer zurück.

V. Entsprechend nahm die Kammer das Beschwerdeverfahren in unveränderter Besetzung wieder auf. Mit dem Formbrief vom 5. Juni 2015 lud sie die Parteien zur für den 23. September 2015 terminierten mündlichen Verhandlung. In dem der Ladung beigefügten Bescheid fasste sie die Entscheidung R 16/13 zusammen und lud die Parteien ein, zu den gemäß dieser Entscheidung im wiederaufgenommenen Verfahren zu behandelnden Punkten Stellung zu nehmen. Für den Fall, dass die Beschwerdeführerin und Patentinhaberin geänderte Anspruchssätze einreichen wolle, setzte ihr die Kammer eine Frist von zwei Monaten nach Zustellung der Ladung.