T 2383/15 - Correct minor issues before OD

Key points

• In this opposition appeal, the Board does not admit AR4. AR4 corresponds to AR4 before the OD with a further amendment.
• " The amendment was made in order to overcome the objection of lack of clarity" as maintained by the OD. Hence, the OD had rejected AR4 as being unclear.
• " The [patentee] argued that the objection of lack of clarity against auxiliary request 4 defended during the opposition proceedings was first submitted at the oral proceedings before the opposition division, so that they could only overcome the objection after having contacted the client. However, it is evident, in the Board's view, that the wording of the claims defended in opposition was unclear and the amendment proposed now is self-evident as well, [...]. Therefore, the appellant's argument is rejected." 
• " It is further noted that the argumentation of the appellant in respect of inventive step contemplated in respect of auxiliary request 4 is directed to an issue which was not dealt with in the contested decision (nature of the iron cation), in respect of any of the then pending requests. Therefore, admitting auxiliary request 4 into the proceedings may have required that the case be remitted to the first instance for further prosecution, which could have been avoided if operative auxiliary request 4 had been filed in the first instance proceedings. It was indeed the deliberate choice of the appellant which prevented the opposition division from deciding on inventive step on a properly formulated request."
• I think I can see what the patentee was trying to do here, and on the face of it, it sounds plausible that minor issues can be corrected in appeal. I think it is good that the Board calls out this tactic (though of course, I don't know for sure the patentee's strategy).

EPO T 2383/15 - link

Auxiliary requests 4 and 5

4. Admittance

4.1 The respondent requested that auxiliary requests 4 and 5 be not admitted into the proceedings pursuant to Article 12(4) RPBA.

4.2 Operative auxiliary request 4 is based on auxiliary request 4 dealt with in the contested decision, whereby the feature related to the iron content was amended in order to indicate that it is directed to trivalent iron. The appellant argued that said amendment was based on page 26, lines 18-20 of the application as filed.

4.2.1 The amendment was made in order to overcome the objection of lack of clarity of that feature retained by the opposition division (section 10 of the contested decision). However, the amendment made in operative auxiliary request 4 is based on the passage of the description of the application as filed corresponding to the support already relied upon by the appellant during the opposition proceedings (see section 10.6 of the minutes of the oral proceedings before the opposition division: paragraph 55 of the patent in suit corresponds to page 26, lines 6-21 of the application as filed). Therefore, should the appellant have desired to defend claims corresponding to operative auxiliary request 4, he could, and actually he should, have done so during the oral proceedings before the opposition division. In the present case, there is no evidence on file justifying such a late filing of auxiliary request 4.

G 1/19 - Referral T 0489/14 - Patentability of computer implemented simulations

Questions referred:

The following questions are referred to the Enlarged Board of Appeal for decision:
1. In the assessment of inventive step, can the computer-implemented simulation of a technical system or process solve a technical problem by producing a technical effect which goes beyond the simulation's implementation on a computer, if the computer-implemented simulation is claimed as such?
2. If the answer to the first question is yes, what are the relevant criteria for assessing whether a computer-implemented simulation claimed as such solves a technical problem? In particular, is it a sufficient condition that the simulation is based, at least in part, on technical principles underlying the simulated system or process?
3. What are the answers to the first and second questions if the computer-implemented simulation is claimed as part of a design process, in particular for verifying a design?

EPO G 1/19 - G 0001/19 - G0001/19
T 0489/14 - link

IX. Claim 1 of the main request reads as follows:

• "A computer-implemented method of modelling pedestrian crowd movement in an environment, the method comprising:
• simulating movement of a plurality of pedestrians through the environment, wherein simulating movement of each pedestrian comprises:
• providing a provisional path (9) through a model of the environment from a current location (6) to an intended destination (7);
• providing a profile for said pedestrian;
• determining a preferred step (112'), to a preferred position (123'), towards said intended destination based upon said profile and said provisional path, wherein determining said preferred step comprises determining a dissatisfaction function expressing a cost of taking a step comprising a sum of an inconvenience function expressing a cost of deviating from a given direction and a frustration function expressing a cost of deviating from a given speed;
• defining a neighbourhood (29) around said preferred position (123');
• identifying obstructions in said neighbourhood, said obstructions including other pedestrians (21) and fixed obstacles (25);
• determining a personal space (24) around said pedestrian;
• determining whether said preferred step (112') is feasible by considering whether obstructions (21, 25) infringe said personal space over the course of the preferred step (112')."

Reasons for the Decision

Admissibility of the appeal

1. The appeal complies with the provisions referred to in Rule 101 EPC and is therefore admissible.

The application

2. The invention relates to a computer-implemented method, computer program and apparatus for simulating the movement of a pedestrian crowd through an environment.

The published application, on pages 11 to 56, describes a mathematical model of individual pedestrians and an algorithm for simulating their movement through an environment. This is followed, on pages 56 to 70, by the description of a design system which performs the simulation. This system, shown in Figure 21, allows the user to build a model of an environment by creating it or importing a design from a computer-aided-design (CAD) source (page 58, lines 28 to 32). During the execution of the simulation, a sequential set of snapshots is displayed showing the current position of each pedestrian in the modelled environment. These simulation results can be analysed either online, i.e. while the simulation is running, or offline after the simulation has finished and the results have been recorded (page 60, line 18, to page 61, line 5).

T 1090/14 - Unsubtantiated requests

Key points

• In this opposition appeal, the Board does not admit Auxiliary Requests 3 to 10.
• "  The statement of grounds of appeal did not contain any explanation why auxiliary requests 3 to 10 overcame the objection of lack of inventive step " 
• Nor was such an explanation provided in reply to the board's communication in which  [patentee] was made aware of the lack of substantiation with regard to these requests. Since it is not self-evident either how auxiliary requests 3 to 10 could remedy the deficiency identified by the opposition division with regard to the previous requests, [patentee] cannot be considered as having "set out clearly and concisely why it is requested that the decision under appeal be set aside".
• The patentee did not attend the oral proceedings.

EPO T 1090/14 - link

Auxiliary requests 3 to 10

23. Article 12(2) RPBA inter alia provides that the statement of grounds of appeal shall contain a party's complete case, that it shall set out clearly and concisely why it is requested that the decision under appeal be set aside and should specify expressly all the facts, arguments and evidence relied on.

24. Auxiliary claim requests 3 to 10 were submitted with appellant I's statement of grounds of appeal. The statement of grounds of appeal did not contain any explanation why auxiliary requests 3 to 10 overcame the objection of lack of inventive step raised in relation to the requests dealt with in the decision under appeal and which were re-filed in the appeal proceedings, i.e. the statement of grounds of appeal has not placed the board or the other party in a position which allows it to understand why the amended subject-matter overcomes this objection. Nor was such an explanation provided in reply to the board's communication in which appellant I was made aware of the lack of substantiation with regard to these requests. Since it is not self-evident either how auxiliary requests 3 to 10 could remedy the deficiency identified by the opposition division with regard to the previous requests, appellant I cannot be considered as having "set out clearly and concisely why it is requested that the decision under appeal be set aside".

25. Consequently, auxiliary requests 3 to 10 do not comply with the requirements of Article 12(2) RPBA and are thus not taken into consideration.

26. Since no request is allowable, the appeal of appellant II is successful, while that of appellant I must be dismissed.

T 0046/13 - Honest but not admitted

Key points

• The Board does not admit a new attack based on D13. " In their statement of grounds of appeal the appellant [=opponent] did not challenge this finding and did not in any way base their case on document D13." 
• " After oral proceedings had been arranged the appellant amended their case, referring to document D13 for the first time in the appeal" 
• " The appellant [=opponent] confirmed during the oral proceedings before the Board that they had only come across this passage in document D13 when preparing their response to the Board's summons and that they had not referred to this passage in the first-instance proceedings." 
• "In the present case the Board considered that it would not be reconcilable with the need for procedural economy to admit this change to the appellant's case at this stage of the appeal proceedings. The Board considered that were the change to be admitted, it would be appropriate to remit the case to the opposition division for further examination, as had been requested by the respondent. That would entail a lengthy delay in the proceedings, caused purely by the failure of the appellant to submit their case fully both before the opposition division and with their appeal grounds."

EPO T 0046/13 - link

Hence, the claimed invention involves an inventive step in the sense of Article 56 EPC over the prior art cited in the grounds for appeal, i.e. documents D7, D8, D12 and D2.

2. Admittance of document D13 and the inventive step objections based on it

2.1 In the first-instance proceedings the opposition division decided pursuant to Article 114(2) EPC to disregard inter alia document D13 as it had not been submitted in due time and prima facie it was not relevant to the decision (see reasons, 9.3.2). They held that although D13 showed an oscillation circuit on a circuit board and a detection circuit on a circuit board, both connected to each other via a flexible connection member, the skilled person would not take D13 into account because the mechanical arrangement of the sensor in D13, which showed multiple housings was incompatible with the arrangement of D7/D8 (see reasons, 9.3.1).

T 1433/14 - Plausibility strikes again (Influenza vaccine)

Key points

•  "[If] it becomes apparent that a purported technical effect is not achieved by all of the claimed subject-matter, for instance because it is not plausible that the claimed subject-matter actually achieves the purported effect [...], then the problem cannot be considered as having been solved (see point 10. above). In such a case the technical problem is reformulated in a less ambitious way and the obviousness of the claimed solution to that reformulated problem in the light of the cited prior art is assessed" 
•  "the patent itself contains no evidence of any kind, in the form of results from either in vivo or in vitro experiments or otherwise to show that any "Replikin" peptide, and in particular a peptide of SEQ ID NO: 141, is capable of acting as a vaccine against H1N1 influenza virus." 
• "The fact that the so-called malignin peptide of the sequence "YKAGVAFLHKKNDIDE", derived from a brain cancer protein, is able to elicit antibodies in rabbit and that these are cytotoxic to cancer cells in vitro [..] would not be considered generalisable to the present case by the skilled person, since this evidence relates to a different disease (cancer) and a different immunogen" 
•  " the board concludes that at the relevant date of the patent, the skilled person would not have considered it credible that the peptide of SEQ ID NO: 141 could be used as a vaccine against any influenza virus" 
• " In view of the conclusion [] above, the evidence in post-published documents D11, D16, D17, D18, D23, D23a, D29, D30, D47, D55 and D56, all submitted to show that the claimed subject-matter indeed has the technical effect ascribed to it in the patent, cannot be taken into account in the assessment of inventive step." 
• The medical use claims (first medical use claims) are insufficiently disclosed for the same reason.

EPO T 1433/14 - link

Reasons for the Decision

1. The appeal complies with Articles 106 to 108 and Rule 99 EPC and is therefore admissible.

Admission of documents D44 to D57 and D60 to D65 into the proceedings - Article 13(1) RPBA

2. None of the above mentioned documents were relied on by the board in reaching its decision and they were not referred to by the parties in their relevant submissions. Consequently, the board did not decide on the admission of these documents.

Admission of auxiliary requests I to III into the proceedings - Article 12(4) RPBA

3. The board has the power to hold inadmissible facts, evidence or requests which could have been presented or were not admitted in the first instance proceedings (Article 12(4) RPBA). Auxiliary requests I to III were all filed with the statement of grounds of appeal. The board is persuaded by the appellant's arguments that they could not have filed them in the first instance proceedings because they were not prepared for the focus on plausibility in the context of the discussion of inventive step, in view of the fact that this topic was not mentioned in the summons to oral proceedings. The board therefore decided to admit these requests.

[...]

Main request and auxiliary requests I to III - claim 1

5. Claim 1 of auxiliary request III is for a peptide which "has" the amino acid sequence of SEQ ID NO: 141 ([...]).
The claim further states that the peptide is an "isolated or synthesized H1N1 influenza virus Replikin peptide from a hemagglutinin protein wherein said peptide consists of 7 to 50 amino acids comprising (1) at least one lysine residue located six to ten residues from a second lysine residue; (2) at least one histidine residue; and (3) at least 6% lysine residues".

T 1633/18 - Webform filing apeal

Key points

• In this examination appeal, the Notice of appeal was filed with webform filing, which is expressly not allowed; the documents are deemed not received (EPO 2018, A45). Nevertheless, the EPO accepted the documents (the documents were added to the file, the debit order for the appeal fee was carried out; the EPO did not notify the appellant). 
• " Since both letters were received well before the expiry of the respective time limits (for filing the appeal and for filing a statement of grounds of appeal), by not observing its duty to inform the appellant without delay, the EPO deprived it of the opportunity to resubmit its letters by correct means of filing documents." 
• Therefore, under the principle of protection of legitimate expectations, the documents are deemed to be filed (the appellant had also resubmitted the documents on paper when invited to do so by the Board).
• The appeal is nevertheless inadmissible, because the Statement of grounds was only an indication that arguments will be filed ("In the submission to be made by 29 May 2018, the Applicant will submit substantive arguments why the Examiners of the Examination Division are over-severe in their assessment" ).
• As a comment, the appellant was represented by a professional representative working at a (small, UK) patent attorney firm.
• As a further comment, it is rather surprising that the EPO carried out* a debit order filed on 28.03.2018 with webform filing. Since 01.12.2017, webform filing is not an accepted means of filing a debit order (just like PDF documents). Compare T 590/18 . (* = there is a refund of the appeal fee because the fee was paid twice by the same payer on the same date referring to two different vouchers. There are no vouchers visible in the online file but I think online fee payment (a form of debit order) does not show up in the online file; perhaps credit card payment also is processed as "voucher" by the EPO. In any case, the Notice of appeal states  "the Applicant herewith authorizes deduction of an associated appeal fee"; strictly speaking the appellant may have additionally paid the appeal fee twice with online fee payment but more likely that debit order in the letter was processed). 
• As a final comment, I am not aware of any logic why webform is excluded for appeals (and also from opposition, limitation and revocation proceedings). Webform filing is intended to replace fax, and faxes are perfectly fine in appeal. I am also not aware of the EPO having indicated a reason for the exception. Of course, no smartcard is required for webform filing. However, already since 16.11.2015 the requirement of an 'enhanced electronic signature' for appeal documents is abolished. Faxes are also acceptable and don't use the smartcard at all. Facsimile signatures are fine for fax but apparently not if they are filed as a PDF document using Webform Filing (note that furthermore fax shows the sender's fax number whereas Webform filing is set up to always have a sender's email address). If the reason is to exclude the filing of important documents, why is a withdrawal of an application not excluded from WWF?

EPO T 1633/18 - link

Reasons for the Decision

1. Filing of documents in respect of appeal proceedings using the EPO Web-Form Filing service

1.1 The contested decision was dispatched on 29 January 2018. The applicant submitted both the notice of appeal dated 28 March 2018 and the further letter dated 14 May 2018 by using the EPO Web-Form Filing service.

1.2 However, this service may not be used for filing documents in respect of appeal proceedings (see Article 2(1) and (2) of the Decision of the President of the EPO dated 10 September 2014 concerning the filing of documents using the EPO Web-Form Filing service, OJ EPO 2014, A98; Rule 2 EPC). The Board notes that this decision has been superseded by the Decision of the President of the EPO dated 9 May 2018 concerning the electronic filing of documents, which entered into force on 1 June 2018 but leaves the provisions concerning the use of the EPO Web-Form Filing service essentially unchanged (see Article 3 of the Decision dated 9 May 2018, OJ EPO 2018, A45). If documents in respect of appeal proceedings are nonetheless filed using the EPO Web-Form Filing service, they are deemed not to have been received.

T 2109/15 - Interpreter at the oral proceedings

Key points

• In this opposition, appeal cease, the opponent had requested interpretation too late. The opponent hence arranges for interpretation into the language of the proceedings, hence brings an interpreter to the oral proceedings. The patentee objects to the interpreter. According to the patentee, it is not acceptable that the patentee has to rely on the interpreter of the opponent and that the opponent, by not observing the period of Rule 4(1) EPC, can impose an interpreter of its own choice. The representative of the patentee indicated that it could be liable to its client if it loses the case. The patentee, in particular, feared to be disadvantaged if the interpreter were to misrepresent the submissions of the opponent into the language of proceedings (German) used by the patentee. 
• The Board notes that according to Rule 4(1) EPC, a party can arrange for its own interpreter, without further requirements as to the interpreter. There is no legal requirement for approval of the interpreter by the other party. Moreover, the interpreter of the opponent was a professional interpreter often acting before the EPO.
• I suppose that the underlying question is what the relevant submissions of the opponent are: those as spoken by the opponent, or those as the translation? I think, from a legal point of view,  the submissions as translated in the language of the proceedings should be decisive so that a low-quality interpretation is for the risk of the opponent and making the whole point moot. However, in practice, the Board would of course listen to the opponent's submissions (in French in this case).

EPO T 2109/15 -  link

Entscheidungsgründe

1. Die Beschwerden sind zulässig. Dies wurde von den Parteien auch nicht mehr bestritten.

2. Zulässigkeit der von der Beschwerdeführerin II bzw. Einsprechenden besorgten Übersetzer - Antrag auf Vertagung der mündlichen Verhandlung

2.1 Die Beschwerdeführerin I bzw. Patentinhaberin verweigerte zu Beginn der mündlichen Verhandlung ihre Zustimmung zu dem geplanten Übersetzungsprozedere. Nachdem die Parteien mit Mitteilung der Geschäftsstelle vom 20. August 2018 (mit Fax vorab am 16. August 2018 an die Einsprechende gesendet) auf das Fristversäumnis eine Übersetzung zu beantragen hingewiesen worden seien, hätte sich die Einsprechende umgehend mit der Patentinhaberin zur gemeinsamen Auswahl der Übersetzer in Verbindung setzen müssen. Die Einsprechende habe jedoch abgewartet und die Patentinhaberin erst eine Woche vor dem geplanten Termin für die mündliche Verhandlung darüber informiert, dass sie selbst für eine Übersetzung gesorgt habe. Die Übersetzer seien von der Einsprechenden ausgewählt und beauftragt worden und würden von ihr bezahlt. Es gehe nicht an, dass der Kläger sich auf die Dolmetscher des Beklagten verlassen müsse, dass also die Einsprechende - bei Nichtbeachtung der Monatsfrist gemäß Regel 4 (1) EPÜ - ihren eigenen Wunschübersetzer aufzwingen könne. Die Patentinhaberin mache sich gegenüber ihrem Mandanten angreifbar, falls sie das Verfahren verlieren würde. Es sei nicht auszuschließen, dass das rechtliche Gehör der Beschwerdeführerin I in Gefahr sei.