Fig. 2 of D1 (WO2006/095202)
Only in few number cases the right to priority is extensively examined - in general only if there is prior art that has been published in the priority year. In this opposition appeal there was a document on file (D1) that was published in the priority year of the disputed patent. An interesting thing to mention is that document D1 is a PCT application of the same applicant as the owner of the disputed patent. In the opposition proceedings, the Division decided that the patent did not enjoy the right of priority from the two priority documents and, thus, that the claim as granted lacked novelty. In this appeal, the Board repeated the work of the Opposition Division. The Board wrote down an interesting reasoning because different aspects played a role: features were disclosed in the figures, features were not disclosed as a whole in a single embodiment and it seems that essential elements of the priority documents are not the claims (in other words: the priority documents disclose different inventions).
Reasons for the Decision
4.4 Consequently, the subject-matter of claim 1 of the contested patent is not novel over the disclosure of document D1 (Article 54(1) and (2) EPC).
This decision T1434/13 (pdf) has European Case Law Identifier: ECLI:EP:BA:2016:T143413.20160913. The file wrapper can be found here. The illustration is Fig. 2 of document D1 (WO2006/095202).