Tuesday, 27 October 2015

T 0970/12 - Yet another grant of re-establishment of right


This is another example where the Board of Appeal granted re-establishment of rights. Under very extraordinary circumstances and a combination of the Christmas and New years holidays, a sudden death of a close relative of the representative and the presence in the office of a trainee that did not know the correct procedures, the date for filing the Notice of Appeal was missed. The Board did not make much fuss and granted the re-establishment of rights.

Summary of Facts and Submissions
I. The present appeal lies from a decision of the examining division refusing European patent application No. 09166600.8, published as EP 2111855, under Article 97(2) EPC. The application was filed as a divisional application of European patent application No. 07007272.3, published as EP 1847256 (parent application).

[...]
Claim 1 of the main request before the examining division read as follows:
"1. Inhalation compositions in the form of sterile monodose ampoules of 5-7% hypertonic solution containing hyaluronic acid or a salt or ester thereof with a low molecular weight or an intermediate molecular weight at a concentration of between 0.01% and 1%."
IV. The examining division considered that the main request and the auxiliary request did not meet the requirements of Article 76(1) EPC.
The examining division was of the opinion that the parent application as filed related to "the combined use of antibiotics and hyaluronic acid in a hypertonic solution" and that the presence of antibiotics in the formulations was "an essential feature" of the invention. Moreover, it considered that the examples illustrated the combined use with antibiotics, either simultaneously in a single formulation or as a kit-of-parts. Thus, in the examining division's opinion, the ampoules of hypertonic saline solutions with hyaluronic acid in examples 16 and 17 were to be understood in the context of example 18, which related to a kit-of-parts.
V. The appealed decision was sent to the applicant on 14 December 2011. On 6 April 2012 the applicant filed a request for re-establishment into the time limit for filing an appeal against the aforementioned decision. The fee for re-establishment of rights was paid and the omitted act completed on the same day by means of the filing of a notice of appeal and a statement of grounds of appeal and the payment of the appeal fee.
With its grounds of appeal the appellant requested that a patent be granted on the basis of the set of claims as initially filed (main request) or, alternatively, on the basis of the auxiliary request filed with letter of 11 October 2011 together with amended page 4 of the description (it also filed a copy of the auxiliary request and the amended page of the description with its grounds of appeal).
VI. The board sent a communication to the applicant on 1 August 2013. The communication dealt with the issue of admissibility of the appeal, which hinged on the allowability of the request for re-establishment of rights. The board expressed a preliminary opinion in this respect and asked for clarification of the concrete circumstances.
VII. With a letter dated 18 September 2013 a response to said board's communication was filed. With its response the applicant's representative provided further arguments and evidence concerning the issue of re-establishment of rights.
VIII. The board sent a communication pursuant to Article 15(1) RPBA on 6 June 2014.
In said communication the board summarised the facts on file in relation to the request for re-establishment of rights and expressed its preliminary opinion on the substance of the appeal in case the appeal were to be considered admissible. It also referred inter alia to documents D1, D2 and D6.
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XI. Oral proceedings were held on 22 July 2015.
During the oral proceedings the appellant filed a new main request (containing three claims) and amended pages 4 and 5 of the description.
XII. Claim 1 of the main request reads as follows:
"1. Inhalation formulations in sterile monodose ampoules of 5-7% hypertonic solution containing hyaluronic acid or a salt or ester thereof with a low molecular weight or an intermediate molecular weight at a concentration of between 0.01% and 1%."
Claim 1 of the main request differs from claim 1 of the application as filed in that the expression "compositions" has been replaced by "formulations" and in that the expression "in the form of sterile monodose ampoules" has been replaced by "in sterile monodose ampoules".
XIII. The appellant's submissions, as far as relevant for the present decision, may be summarised as follows:
Re-establishment of rights
With respect to the request for re-establishment of rights, the appellant submitted that, on the day of notification of the decision under appeal, that is, on 27 December 2011, its representative had left the office unexpectedly since he had been informed that his mother's health had suddenly deteriorated. The experienced assistant previously in charge of monitoring dates and time limits was no longer at the office due to his early retirement on 16 December 2011, which had initially been planned for 31 December 2011. The new assistant was still in the period of training. She could not get any advice from any professional representative of the association because they were out of office in keeping with the turns of work (the appellant used the expression "alternation") planned for the Christmas and New Year holiday. The assistant, who was not familiar with the case, erroneously believed that the sub-authorised professional representative who had been present at the oral proceedings before the department of first instance was in charge of monitoring the time limits for the appeal. She therefore did not register any time limit for this decision.
Unexpectedly, on 28 December 2011, the representative's mother died. The appellant's representative returned to the office on Friday, 30 December 2011 and was subsequently out of the office from 2 January 2012 onwards. The bereavement caused him to suffer considerable psychological stress. He therefore did not take note of the contested decision which had led to the inadvertent omission of the recording of the time limits for filing an appeal. On 13 March 2012, the sub-authorised professional representative drew the representative's attention to the missing appeal, thereby removing the cause of non-compliance with the time limits for filing an appeal.
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XIV. The following requests are on file:
The appellant requested that it be re-established in the time limit for filing the notice of appeal, that the decision under appeal be set aside, and that a patent be granted on the basis of the main request filed during the oral proceedings of 22 July 2015 and the description as amended during the oral proceedings of 22 July 2015.
Reasons for the Decision
1. Re-establishment of rights and admissibility of the appeal
1.1 The time limit for filing the notice of appeal under consideration expired on 27 February 2012. On 13 March 2012, that is 14 days after the expiry of the time limit for filing the notice of appeal, the representative's attention was drawn to the fact that no appeal had been filed. Thereby the cause of non-compliance with the time limits for filing an appeal was removed. The request for re-establishment was filed on 6 April 2012, that is less than two months after discovery of the omission and of the expiry of the time limit for filing the appeal. Therefore, the time limits pursuant to Rule 136(1) EPC have been observed. The board is also satisfied that the other conditions for admissibility of the request for re-establishment are fulfilled.
1.2 Pursuant to Article 122(1) EPC a request may be granted if the time limit has been missed in spite of all due care required by the circumstances having been taken.
1.3 In the board's judgement, the circumstances leading to the omission were exceptional and the appellant's representative found himself in an extraordinary situation that hindered him on his return to the office on 30 December 2011 and after his leave beginning on 2 January 2012 from paying attention to the notification of the contested decision on 27 December 2011. As a consequence, he was unaware of the time limits for the appeal and unable to make arrangements for meeting them (cf. decision T 387/11 of 6 July 2012).
1.4 In the light of the evidence provided it is credible that the appellant's representative suffered considerable psychological stress at the end of December 2011 and in January 2012, subsequent to the sudden death of his mother. Moreover, on the day of notification of the contested decision, that is on 27 December 2011, the representative left the office in the morning since he had been informed that his mother's health had suddenly deteriorated. The experienced assistant previously in charge of monitoring dates and time limits had retired early and was no longer at the office at that time. The new assistant was still in the training period. She could not seek advice from any of the four other professional representatives of the association because they were on leave in keeping with the turns of work planned for the Christmas and New Year holiday. The assistant erroneously believed that the sub-authorised professional representative, who had represented the appellant at the oral proceedings before the examining division, was in charge of monitoring the time limit for appeal. The circumstances were thus exceptional: No professional representative was present and the newly appointed assistant had no experience in handling incoming notifications of decisions, even though she had worked for some time at the office in another function. Moreover, it was not apparent to her from the file who had the responsibility for the appeal, since the sub-authorisation that had been given to the professional representative in Munich was not expressly limited to the representation at the oral proceedings before the examining division and there was no information in the verbal arrangement between the two representatives involved that the sub-authorisation was not intended to change responsibility for the appeal. In view of the considerable psychological stress due to his sudden bereavement, the appellant's representative could not be reasonably expected to become aware of the notification of the contested decision during his short presence at the office on 30 December 2011 and immediately after his return from leave in January 2012. In the board's judgment, this extraordinary situation persisted, so the appellant's representative could not have been expected to note the omission before receipt of an email on 13 March 2012 from the sub-authorised professional representative drawing his attention to the missing notice of appeal.
1.5 For the above reasons, the board allowed the request for re-establishment of rights.
2. Main request
2.1 Added subject-matter
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2.1.7 Consequently, the main request does not contain added subject-matter (Article 76(1) EPC).
2.2 Novelty
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2.2.3 Consequently, the subject-matter of claim 1 of the main request is novel vis-à-vis documents D1 and D2 (Articles 52(1) and 54(2) EPC).
2.3 Inventive step
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None of the other documents available on file suggests the obviousness of the proposed solution to the technical problem defined above.
Consequently, the main request complies with the requirements of Article 56 EPC.
Order
For these reasons it is decided that:
1. The appellant is re-established in his rights.
2. The decision under appeal is set aside.
3. The case is remitted to the department of first instance [...]
This decision has European Case Law Identifier: ECLI:EP:BA:2015:T097012.20150722 and can be found here. The file wrapper can be found here. Picture by G. Hateboer.

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