T 0969/14 - Partial transfer of priority?

Key points

• In this opposition appeal case, the question is whether the priority is valid. The priority application D16 was filed by Chiesi, the application that became the patent in suit was filed by Vectura. The question is therefore whether Vectura " owned the priority right resulting from D16" 
• There is an assignment D22 from Chiesi to Vecture of " rights to the ownership of application 3 (D16)" . However, there is a further assignment D23 "in which Vectura re-assigned to Chiesi the right to claim priority from application 3 (D16) in worldwide patent applications insofar and only insofar as said worldwide patent applications shall claim the Programme 2 formulations." The "Programme 2 formulations" are embodiments of the invention.
•  The Board first notes that in G1/15 the Enlarged Board has ruled that entitlement to partial priority may not be refused for a generic "OR"  claim. 
• The Board: "Once it is acknowledged that partial priority rights exist, they must also be transferable separately. This, however, has consequences for the remaining priority right, because the assignor is left with a limited right." 
• The patentee had argued that according to   T 15/01 there is no exhaustion of priority rights. The Board: "However, an applicant can only claim a right which he owns and this was not the case for the priority right concerning the Programme 2 formulations. An applicant cannot transfer a partial priority right and at the same time keep it for claiming it in a broader context." 
• The Board finds that "Consequently, the subject-matter of claim 1 as granted encompasses embodiments for which the patent proprietor did not have the priority right and for which therefore the priority is not valid."  
• The priority is therefore partially invalid.
• Claim 1 is therefore not novel over D14, a prior right under Article 54(3). D14 validly claims priority of D16 and which discloses embodiments for which the priority of the claim 1 at issue is not valid. Consequently, the main request does not meet the requirements of Article 54(3) EPC.
• As a comment, I think that the Board assumes too easily that "Once it is acknowledged that partial priority rights exist, they must also be transferable separately." Not everything that exists, can be transferred under law. For example, under Dutch law, claims of a patent can not be transferred:  a person can e.g. be owner of a 50% share of a patent or a patent application, but claim 1 and claim 2 can not have different owners (same for the EPO of course). The same applies to e.g. pedals of a bike under Dutch law. The pedals and the bike can have a different owner once the pedals are removed from the bike, but not as long as the pedals are part of the bike, the owner of the bike is owner of the entire bike. I can perfectly agree to with someone to sell to him the pedals, or to sell to him claim 2 of a patent, but such agreement is without effect as a matter of Dutch property law. Hence, the fact that "partial priority" exists as a matter of patent law, does not mean that it is separately transferable. The latter is a priori a matter of national law. If Dutch law is the applicable national law, it must be concluded that the assignment D22 is without effect as to the ownership of the priority right (under Dutch law, there is a strict distinction between agreements and ownership, as in German law). 
• Auxiliary Request 4 adds a disclaimer to exclude the "Programme 2 formulations", the disclaimer feature was in claim 17 of the application as filed."The amendment brought to claim 1 of this request overcomes all issues as regards the validity of the priority and the relevance of D14 under Article 54(3) EPC." However, AR4 is not admitted because it was filed with the Statement of grounds. "The patent proprietor could have filed a request disclaiming the formulations for which the priority was not valid. He even had an express basis for this in claim 17 as filed and in claim 16 as granted to address this very issue." The request should have been filed before the OD.

EPO T0969/14 -  link

Reasons for the Decision

1. Validity of the priority

1.1 Pursuant to Article 87(1) EPC, a right of priority originates in the applicant of a first application. Therefore, in principle, the applicant has to be the same for the first application and for the subsequent application for which the right of priority is invoked. However, pursuant to Article 87(1) EPC, the right of priority may also be invoked by the "successor in title" of the person who has filed the first application. By reference to the "successor in title", it is recognised that the right of priority, being a legal right, may be transferred from the original applicant to a third person. It is generally accepted that the right of priority is transferable independently of the corresponding first application. The transfer must have occurred before the filing date of the subsequent application. This is well established jurisprudence of the Boards of Appeal (cf T 205/14 of 18 June 2015, with further references).

T 2057/12 - Closest prior art and technical field

Key points (I)

• This decision is about the meaning of the closest prior art and was already discussed here. 
• The Board: " [The problem-and-solution] approach presupposes that the skilled person would have indeed possibly been confronted, in the framework of his activities, to the item of prior art selected as closest prior art, and would have then recognised the existence of the objective problem to be solved." 
• " It is, however, hardly conceivable that the skilled person would decide to ignore the purpose of an object or process he is using during his normal activity to modify said object or process by getting rid of one of the features essential for said purpose." 
• The Board agrees with T2201/10 (same Board different composition), that " if the claimed invention distinguishes from the [a prior art document] only in the modification of a feature disclosed as essential in the context of said prior art [document]", this is "sufficient as such to conclude that the invention is not obvious vis-à-vis this prior art"

Key points (II)

• More important is the Board's analysis of whether claim 1 is obvious over A6 (or A11), which is about an electrical connecting system on a printed circuit board, whereas the claimed connection element is fixed to a glass pane of a motor vehicle.
• " The question arises then whether document A6, or A11, may indeed be considered to illustrate the closest prior art ". The Board acknowledges that "the closest prior art normally discloses an item of prior art which shares a common purpose with the claimed subject-matter". The Board notes however that the claimed invention can be defined as a glass panel with an electrical connection, or as an electrical arrangement installed on a glass panel. The Board : "the principles [of established case law] recalled above would then make the decision on obviousness dependent on the manner the independent claims are drafted and would be clearly contrary to an objective assessment of the inventive merits of a claimed invention" .
• The Board notes that "it can indeed not be excluded, beforehand, that real-world circumstances would have led a skilled person in a certain technical field to have given attention or even used an item of prior art from a completely different technical field. Such a scenario, rather unusual, cannot rely on mere speculation, but must be supported by sufficient evidence and argumentation." 
• The Board proposes to do the inventive step analysis in two ways: "arguments or evidence should be provided as to why the skilled person in a specific technical field would have indeed envisaged selecting a document in a remote field of technology as closest prior art or, alternatively, whether he would have indeed considered adapting a prior art disclosure originating from his technical field to implement it in a remote technical field." 
• The Board then assess, firstly "whether the skilled person in the art of glass panes for motor vehicles would have considered documents pertaining to the field of PCBs such as A6, or A11, as possible starting points." (and finds that this is not the case)
• The Board secondly assess: "the skilled person to be considered would be the skilled person in the field of PCBs. In that situation, the selection of A6, or A11, as closest prior art is justified by the mere fact that both documents belong to his field of activities. The question to be elucidated is then whether the skilled person in the field of PCBs would have indeed envisaged modifying the prior art disclosures of A6, or A11, so as to use them on glass panes for motor vehicles. Relying on the technical effects provided by a glass pane identified above (cf. section 3.2.1) this would imply that the skilled person would concern himself with the protection of passengers of a vehicle from the effects of the wind. Here again, in the absence of evidence or convincing argumentation as to why the person in the field of PCBs would have tackled such issues, the objection of lack of inventive step fails as unrealistic, under the circumstances." 
• As a comment, the somewhat weaker point is that the Board does not explain how to identify "the skilled person". In the first approach, the skilled person (in the art of glass panes) depends on the "the manner the independent claims are drafted". I think that the second approach is correct, but in order to be consistent, the sentence about "the selection of A6, or A11, as closest prior art is justified by the mere fact that both documents belong to his field of activities"  should have been omitted. It mixes the first and second approach. In the second approach, any arbitrary document can be taken as "starting point" for the problem-and-solution approach, great care must be given to the requirement that "sufficient evidence" must be given that the skilled person would give attention to the different technical field. But if there would have been some evidence on file that PCB engineers are frequently thinking about "the protection of passengers of a vehicle from wind", the claim could have been obvious starting from A6. 

EPO T 2057/12 -  link

3.1.3 Plugs or clamping systems of the kind used according to the present invention are known from A6, or A11. In order to arrive at the claimed subject-matter, the skilled person would however have to renounce to the amplification function provided by the high frequency body of A2 and to replace it by the connector means known from A6, or A11. This would imply renouncing to a feature presented as essential in the context of A2.

In the appellant's view, these findings are not relevant in the context of the invention where the presence of an amplifier is not addressed and not even required, though the invention also covers the field of antennas. The definition of the objective technical problem to be solved by the claimed invention is the only aspect that really matters when deciding on how the closest prior art is to be modified. The purpose which leads to modifying the closest prior art is, in this respect, irrelevant.

T 2232/14 - Product-by-process feature in method

Key points

• In this opposition appeal, claim 12 is essentially the method of manufacturing a pharmaceutical composition, the method comprising spraying the aqueous dispersion manufactured according to (method) claim 1 on a substrate. 
• The spraying step as such was known. The Board explains that in claim 12, the feature "der wässerigen Dispersion ... welche durch das Verfahren nach einem der vorhergehenden Ansprüche hergestellt wird", a product-by-process feature is. Although the process of claim 1 is novel, the product of claim 1 is not inherently novel. Therefore, claim 12 is not novel.
• " Wie bereits von der Einspruchsabteilung [] zutreffend festgestellt, umfasst Anspruch 12 nicht die Verfahrensschritte des Anspruchs 1 als solche, sondern definiert das im beanspruchten Herstellungsverfahren der pharmazeutischen wirkstoffhaltigen Formulierung eingesetzte Erzeugnis der wässerigen Dispersion ausschließlich mittels der Verfahrensschritte des Anspruchs 1, d.h. es handelt sich bei der Dispersion gemäß Anspruch 12 um ein sogenanntes "Product-by-Process"-Merkmal. Nach der Rechtsprechung der Beschwerdekammern kann solch ein Merkmal nur dann ein Unterscheidungsmerkmal gegenüber bekannten Erzeugnissen bilden, wenn Unterschiede im Verfahren zur Herstellung dieses Erzeugnisses tatsächlich zu Unterschieden in dem Erzeugnis als solches führen." 

EPO T 2232/14 - link


"12. Verfahren zur Herstellung einer pharmazeutischen wirkstoffhaltigen Formulierung, umfassend das Aufbringen der wässerigen Dispersion zur Herstellung eines Überzuges, welche durch das Verfahren nach einem der vorhergehenden Ansprüche hergestellt wird, durch Aufsprühen auf einen wirkstoffhaltigen Kern".

Entscheidungsgründe

Hauptantrag

1. Artikel 100 a) EPÜ in Verbindung mit Artikel 54 EPÜ - Anspruch 12

1.1 Anspruch 12 betrifft ein Verfahren zur Herstellung einer pharmazeutischen wirkstoffhaltigen Formulierung, welches das Aufbringen einer wässerigen Dispersion durch Aufsprühen auf einen wirkstoffhaltigen Kern zur Herstellung eines Überzugs umfasst. Anspruch 12 gibt weiter an, dass die in diesem Verfahren eingesetzte wässerige Dispersion "durch das Verfahren nach einem der vorhergehenden Ansprüche hergestellt wird", d.h. ein Verfahren gemäß den Ansprüchen 1 bis 11.

T 1934b/14 - Ancillary Decision about minutes

Key points

• This is an "Ancillary decision"  in case T1934/14 issued 08.10.2018 after the decision of 15.03.2018 wherein the patent was revoked.
• The patent proprietor had requested that the minutes of the oral proceedings before the  Board were supplemented.
• In particular, the Patentee submits that during the oral proceedings, he had requested interruption of the oral proceedings, that the Board had rejected this request at once, that the Patentee had brought forward an objection against the ruling, and that the Board dismissed the objection immediately.
• The Board states that such a request is not in the written notes of the Board and also not the recollection of the Board. The counterparty (opponent) also cannot remember such request, according to the Board. 
• The Board notes that the Patentee "admits that it had not requested to take a request for interruption of the oral proceedings into the minutes".
• The Board notes that according to R2/12, "it is the duty of a party to check whether its objection to a fundamental procedure defect... has been recognized by the Board and will be dealt with". However, the Board finds this rule not decisive, because "according to the Board's knowledge and conviction such a request for interruption ... has .. not explicitly been brought forward".
•  The Board obiter dictum notes that " one might argue whether the filing of the request for correction of the minutes nearly 3 months after notification of the minutes fulfils that requirement' (of requesting correction early).
• In this case, a petition for review R 8/18 is pending wherein the Patentee submits that the refusal of the request for interruption is a fundamental violation of the right to be heard.
•  Rule 106 EPC puts the burden of proof on the petitioner, but with sound recording being forbidden by the Boards- (which seems a rather outdated policy decision to me personally, it is not that privacy of the parties needs to be protected ) -  his evidence position can be very difficult. Theoretically, a party can hire a court reporter or stenographer, but that is extremely expensive. Before the petition for review procedure was introduced with EPC 2000, parties had not a clear legitimate need for sound recording of oral proceedings, but this case clearly shows that it is different under EPC 2000, in my view. 

T 1934/14  of 8.10.2018  - link  ECLI:EP:BA:2018:T193414.20181008

Reasons for the Decision

"Request to file a further request::

1. With regard to this request the Board notes that the respondent in its reply of 7 September 2018 did not comment or object to the Board's opinion in the communication of 3 July 2018 (see "ad I.1." as reported in point II, above). In their declarations annexed to the respondent's reply Mr. Frischknecht Heller and Ms. Höfer only confirmed that such a request (see above I.1.) had been brought forward by the respondent at the beginning of the oral proceedings, what has not been denied by the Board.

2. Therefore, the Board has no reason to depart from its opinion as provided in its communication of 3 July 2018. Consequently, this request for supplementation of the minutes has to be rejected for the reasons referred to above (see II.).

T 1731/13 - Need for remittal is reason not to admit

Key points

• In this examination appeal, the Board gives new reasons for a clarity objection with the summons. During the oral proceedings, the applicant files a new request which overcomes the clarity issues. However, the amended claims "gives rise to new objections under Article 123(2) EPC." The applicant requests a remittal to the ED, because the ED had not decided on that issue. 
• The Board: "In view of the considerations mentioned above under points 2.1 to 2.4 the board is of the opinion that the 1st auxil­iary request should not be admitted into the appeal proceed­ings. Hence, it would be inappro­priate to remit the case to the examining division for considera­tion of that request. Otherwise, every request filed during oral proceedings and raising new issues would have to be remitted for consideration of these issues by the first instance. This cannot be the correct approach already for the reason that necessity for remittal is a reason not to admit a request at this stage of the procedure."
• The case is subject to the pending petition for review R11/18.
• As a comment,  the argument that "necessity for remittal is a reason not to admit a request"  can be applied quite broadly, I don't think it is necessarily restricted to requests filed during oral proceedings. This reasoning would of course quite effectively reduce the number of remittals back to the first instance. 
• Added: the need for a remittal (or postponement) is of course an established reason not to admit amended claims (CLBA. IV.E.4.2.6) however typically in connection with the necessity of a new search.  
• Perhaps the more interesting statement is this: "In the summons to oral proceedings the board had merely provided a different reasoning (compared to that of the exam­ining division) why it regarded these same features as unclear. The board does not consider this as a new development objectively occasioning the filing of the 1st auxiliary request." This seems to imply that you must even file Auxiliary requests in response to poorly-reasoned objections in the first instance, for the case that the Board come us with a proper reasoning for the same objection in appeal. Hence, a party must itself consider whether perhaps the Board can come up with proper reasoning for the same objection. It is apparently not sufficient to successfully refute the Examining Division's reasoning.

EPO T 1731/13 -  link

2. Procedural matters

2.1 The 1st auxiliary request was filed during oral pro­ceedings before the board. It constitutes therefore an amendment to the appellant's case after it has filed its grounds of appeal and may be admitted into the proceedings and considered at the board's discretion (Article 13(1) RPBA).

In accordance with established case law, the board exercises its discretion to admit a late-filed request into the pro­ceedings considering whether there are sound reasons for filing the request at a late stage in the proceedings and whether - prima facie - the request overcomes the outstanding objections under the EPC and does not give rise to new objections (Case Law of the Boards of Appeal of the EPO, 8th edition 2016, sections IV.E. 4.4.1 and 4.4.2).

2.2 The appellant argued that the filing of the 1st auxil­iary request was a reaction to the new objection by the board communicated with the summons to the oral pro­ceedings.

In the summons to oral proceedings the board had merely provided a different reasoning (compared to that of the exam­ining division) why it regarded these same features as unclear. The board does not consider this as a new development objectively occasioning the filing of the 1st auxiliary request.

[...]

At any rate, there is no valid reason for not filing the 1st auxiliary request at least with the letter dated 9 March 2018 filed in preparation of the oral proceedings before the board, but only submitting this request as the third attempt to overcome the clarity objection during the oral proceedings.

Hence, the board is of the opinion that there are no sound reasons for filing the 1st auxiliary request at such a late stage during the appeal proceedings.

2.3 The board accepts that the deletion of the features relating FWHM values of the rocking curves overcomes the clarity objection against these features.

[...]

Hence, the 1st auxil­iary request gives rise to new objections under Article 123(2) EPC.

2.4 The appellant argued further that since the issue of compli­ance of claim 1 of the 1st auxil­iary request with Article 123(2) EPC was not dealt with by the examining division, the case should be remitted to the department of first instance so that the issue could be decided there.

In view of the considerations mentioned above under points 2.1 to 2.4 the board is of the opinion that the 1st auxil­iary request should not be admitted into the appeal proceed­ings. Hence, it would be inappro­priate to remit the case to the examining division for considera­tion of that request.

Otherwise, every request filed during oral proceedings and raising new issues would have to be remitted for consideration of these issues by the first instance. This cannot be the correct approach already for the reason that necessity for remittal is a reason not to admit a request at this stage of the procedure.

2.5 In view of the above, the 1st auxiliary request is not admitted into the appeal proceedings (Article 13(1) RPBA) and the case is not remitted to the department of first instance under Article 111(1) EPC 1973.

3. Conclusion

Since the main request and the 2nd to 11th auxiliary requests are not allowable, the 1st auxiliary request is not admitted into the appeal proceedings and the case is not remitted to the department of first instance, the appeal is to be dis­missed (Article 111(1) EPC 1973).

Order

For these reasons it is decided that:

The appeal is dismissed.

New RPBA - Draft October 2018

Key points

• A new draft of the RPBA was published (here). 
• The text is made gender neutral, and the term "Chairman" is replaced by "Chair" .
• At the beginning of each year, the Boards will publish an overview of the cases where they will likely hold oral proceedings in the upcoming year, or will issue a communication or a decision in written proceedings. 
• Under proposed new Art. 11 RPBA, cases are as a rule not remitted back to the first instance, unless there are special reasons for a remittal. The aim is to reduce the "ping pong" between the Boards and the first instance departments. The explanatory remarks state that it is expected that "more issues will be raised and dealt with in the proceedings at first instance" reducing the need for a remittal.

• As a comment, I don't see as of yet how this proposal aligns with the Board’s wish to be a review body. I understand that a review body doesn’t examine matters for the first time in appeal – meaning that it is “cassatory” and remits the case if the impugned decision contains an error and is set aside.
  It is interesting that the explanatory note uses “dealt with” – does this mean “dealt with by the parties”, or “decided on by the first instance department”?

• New Article 12(4) which aims to "reverse the approach of current Art 12(4)". Basically, parts of the Statement of grounds (or reply) that do not comply "with the requirements of paragraph 2" are admitted at the discretion of the Board, "unless the party demonstrates that this part was admissibly raised and maintained in the proceedings leading to the decision under appeal". That exception is added in the revised draft.
• Paragraph 2 states that a party's appeal case shall be directed to the [requests, facts, objections, arguments and evidence] on which the decision under appeal was based. I assume that these are the “requirements of paragraph 2” which Art.12(4) refers to.
•   The “power to hold inadmissible” facts, requests and evidence that should have been filed in the first instance proceedings, is moved to Article 12(6); Art. 12(6) clarifies that they are admitted only if the circumstances of the appeal case justify their admittance; and that this also applies to objections, and to “facts, objections evidence and requests which were no longer maintained”.

• I note that “were no longer maintained” appears to encompass both actively withdrawing a request in the first instance proceedings, as well as implicit waiver / implicit abandonment. The latter seems mostly relevant for “objections”, that term includes  attacks. For example a novelty attack that is only mentioned briefly in a Notice of opposition, is not discussed at all before the OD, and is then relied on in appeal. Implicit waiver is of course a difficult thing to proof. If we call the party submitting the fact (objection, evidence, or request) the “moving party” and the opposing party the “non-moving party”, Art.12(6) suggests that the non-moving party has the burden of proof to show implicit waiver, but the “unless” exception of Art. 12(4) appears to lay the burden of proof with the moving party that the matter was maintained.
• Hence, the RPBA are possibly moving to a rule like the doctrine of “preserving issues/errors/arguments for appeal” as used in US appellate civil procedure. That doctrine seems highly complex. The following from a US law website is illustrative: “The four saddest words from the Court of Appeal are these: "Great argument; not preserved." Alas, even the sharpest legal mind and best honed rhetoric cannot resurrect a terrific argument that was not properly preserved for appellate review.”
• Comments are welcome! And hopefully the user conference on 5 December will shed more light on it, the same can be hoped for the final RPA's with the final explanatory notes.

T 2361/15 - Admissible appeal based on non-admissible attack

Key points Is an appeal that only raises a fresh case admissible, or must the Statement of grounds assert that the reasoning of the impugned decision is incorrect in order for the appeal to be admissible? The Board finds that this appeal based on a fresh case is admissible. " The appeal of the appellant is solely based on an alleged public prior use filed for the first time with its statement of grounds." "In the present case the statement of grounds admittedly does not address the reasons given in the contested decision for rejecting the opposition"  "Bringing a fresh case in appeal does not automatically imply that the statement of grounds does not "indicate the reasons for setting aside the decision impugned". It is a sufficient condition that the statement of grounds of appeal enables the board to understand immediately why the decision is alleged to be incorrect and on what facts the appellant bases its arguments. In the judgment of the board, the statement of grounds meets this condition."  Then: is the new public prior use admissible? "Taking into account that documents E4 and E5 concern an alleged public prior use by the appellant [opponent] itself, lead the board to the finding that these documents could (and should) have been presented in the first instance proceedings."  The nice thing about an admissible appeal is that documents filed later in the procedure, can be admissible. In this case, an inventive step attack was late filed. Hence, because the non-admissible public prior use made the appeal admissible, the Board has to decide on admissibility of the later filed inventive step attack. Weird as this may seem, I think it is more fair than the approach of e.g. T 198/15 (here) and more sound than that of T 846/16. " In the case at hand, the submissions of the appellant with respect to a lack of inventive step were put forward at a late stage of the appeal proceedings and shift the focus to facts not previously mentioned in these proceedings. Under the present circumstances, fairness and economy of the procedure speak against the admission of the new submissions." The inventive step attack is not admitted.  EPO T 2361/15 - link

Reasons for the Decision

1. Admissibility of the appeal, Article 110 and Rule 101(1) EPC

1.1 Rule 101(1) EPC ("Rejection of the appeal as inadmissible") stipulates that "If the appeal does not comply with Articles 106 to 108, Rule 97 or Rule 99, paragraph 1(b) or (c) or paragraph 2, the Board of Appeal shall reject it as inadmissible, unless any deficiency has been remedied before the relevant period under Article 108 has expired".

Since the appeal concerns a decision of the opposition division (cf Article 106(1) EPC), is filed within the time limit specified in Article 108 EPC, first and second sentence, and since the time limit for filing the statement of grounds appeal specified in Article 108 EPC, third sentence, is also met, the appeal complies with Articles 106 and 108 EPC.

Under Article 107 EPC, any party to proceedings adversely affected by a decision may appeal. A party is adversely affected if the decision does not accede to its main request or to auxiliary requests preceding the allowed auxiliary request. In the present case the appellant's main request in the opposition proceedings was that the patent be revoked. The appellant was thus adversely affected by the decision under appeal, by which its opposition against European patent No. 2 284 422 was rejected.

1.2 The notice of appeal contains the name and the address of the appellant (cf Rule 99(1)(a) EPC), an indication of the decision impugned (cf Rule 99(1)(b) EPC), and a request defining the subject of the appeal (cf Rule 99(1)(c) EPC).

1.3 Rule 99(2) EPC provides that "In the statement of grounds of appeal the appellant shall indicate the reasons for setting aside the decision impugned, or the extent to which it is to be amended, and the facts and evidence on which the appeal is based".

The appeal of the appellant is solely based on an alleged public prior use filed for the first time with its statement of grounds.

In the present case the statement of grounds admittedly does not address the reasons given in the contested decision for rejecting the opposition, since the appellant has introduced a fresh case concerning the same ground for opposition (Article 100(a) EPC in combination with Article 54 EPC).

The respondent has submitted that according to the case law of the Boards of Appeal the statement of grounds should specify the legal or factual reasons on which the case for setting aside the decision was based and that the statement of grounds of the appellant did not contain such reasons, thereby suggesting that the statement of grounds contravenes the requirements of Rule 99(2) EPC.

Bringing a fresh case in appeal does not automatically imply that the statement of grounds does not "indicate the reasons for setting aside the decision impugned". It is a sufficient condition that the statement of grounds of appeal enables the board to understand immediately why the decision is alleged to be incorrect and on what facts the appellant bases its arguments.

In the judgment of the board, the statement of grounds meets this condition.

It follows that the statement of grounds of the appellant meets the requirements of Rule 99(2) EPC.

1.4 The appeal of the appellant is therefore admissible, cf Rule 101(1) EPC.