Tuesday, 28 June 2016

T 1402/13 - Deemed to be withdrawn as no renewal fee paid, but when?

If the renewal fee is not paid by the due date, and also not by the end of the 6-month period to pay it with an additional fee, when is the European application deemed to be withdrawn? There seems to be no doubt about it since the November 2015 Guidelines for Examination: it reads in A-IV, 1.1.1 "In the event of non-payment of a renewal fee by the due date (Rule 51(1)), the application is pending up to the last day of the six-month period for payment of the renewal fee with an additional fee (Rule 51(2)), and a divisional application may still be filed during this period – even if the fees are ultimately not paid. Deemed withdrawal of the application takes effect on expiry of the six-month period." The Guidelines paragraph reflects what was written in the OJ 2007, SE 4, page 86, item 4: "Article 86(3) EPC is also deleted and the legal consequence of a failure to pay the renewal fee in due time is added to Article 86(1) EPC. It is emphasized that this does not modify the current situation, and under the Implementing Regulations to the EPC 2000 the application shall only be deemed to be withdrawn if the renewal fee and any additional fee have not been validly paid within the prescribed grace period for payment (see Rule 51(2) EPC 2000)." Nevertheless... the Board decided differently in this case.

Monday, 27 June 2016

T 1088/11 Enlarging and reducing the opposition division

Last January we discussed T 1254/11 dealing with enlarging/reducing the opposition division. This also plays in this case where the board takes the effort to thoroughly discuss whether (enlarging and later) reducing of an opposition division is possible at all and the procedural aspects for a valid reduction.
The board concludes that in principle, an opposition division may set aside a decision to enlarge its composition pursuant to Article 19(2) EPC (as is the current practice). 
On the procedural aspects, the Board decides that the legal validity of an enlargement or a reduction of an opposition division may only be established on the basis of the evidence in the publicly available file. In particular, where an opposition division has been enlarged pursuant to Article 19(2) EPC, 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 the enlargement was taken by the opposition division in its four member composition prior to the final decision. 
This was not the case, thus the board remits the case to the opposition division for further prosecution.

Tuesday, 21 June 2016

T 690/11 - When is presenting information technical?

Set-up procedure screen without web-browser

This opposition appeal concerns a dialysis system that shows set-up procedure screens to help an operator.

Claim 1 of the patent as granted reads as follows:

"A dialysis system (10,100) comprising:
a display device (40); and
a web browser (602) and web server(604) embedded in the dialysis system, characterized in that the browser and the server operate with the display device to:
display a plurality of dialysis therapy set-up procedure screens that require an operator input, and
display a plurality of dialysis treatment screens that graphically illustrate the progress of at least one step in the dialysis therapy in at least substantially real time."

The opponent considers that the features of displaying dialysis therapy set-up procedure screens and treatment screens are non-technical and should be disregarded for inventive step. The board disagrees, and finds this claim inventive over a dialysis system with a web browser. The comparable case T 336/14, which featured earlier on this blog, went the other way; the present claim is distinguished from it in the decision below.

Thursday, 16 June 2016

T 1325/15 - Inadmissible or simply not filed?


This appeal revisits the question whether an appeal is to be found inadmissible or deemed not to have been filed if the notice of appeal is filed within the time limit, while the appeal fee is paid only after expiry of the time limit for filing the notice of appeal.

It is recalled that Article 108 EPC, second sentence, reads "Notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid", without explicitly specifying that the fee for appeal should have been paid on time, i.e., within the applicable time limit.

The issue had already been referred to the Enlarged Board of Appeal by T 2017/12 and T 1553/13, without either referral resulting in an answer.

The Board's conclusion is in line with the established practice: the late filing of a document is treated in the same way as its non-filing. As such, the appeal is deemed not to have been filed by the Board.

Catchwords: See points 34 to 43 of the reasons

Tuesday, 14 June 2016

R 04/14 - Late filed request vs. right to be heard

This petition for review relates to whether or not non-admissibility of a late filed request can be in conflict with the right to be heard under Art. 113(1) EPC, either because of a surprising development of the case, or because of “prima facie” assessment of the allowability of the request.

In the underlying appeal proceedings, the petitioner’s (=proprietor’s) only pending request was not allowed due to lack of clarity. The petitioner was surprised that the discussion of clarity of this particular feature was resumed in the second oral proceedings. The Board had indicated in its summons to the second oral proceedings, that clarity of other features were to be discussed and that it should not be necessary to repeat the argument presented in the first oral proceedings (where this feature had been discussed but not decided on). However, respondent III had indicated in its response, that it still considered it relevant to discuss the clarity of the feature in question.

At the beginning of the second oral proceedings, the petitioner only had one request on file. This request is found unallowable due to lack to clarity. The petitioner filed a new main request during the oral proceedings, which request was not admitted into the proceedings.

The questions here addressed by the Enlarged Board of Appeal are therefore:

1. Can the Petitioner objectively be considered to have been surprised by the Board’s decision in the second oral proceedings?, and

2. Can a “prima facie” assessment of the allowability of a request constitute a violation of the right to be heard?

Friday, 10 June 2016

T 1626/11 - Reformatio in peius if all opponents withdraw

Four opponents in this opposition appealed the decision of the opposition division but later withdrew their opposition, leaving the proprietor as the sole appellant. 

In the appeal new evidence was cited and the Board came to the conclusion in a preliminary opinion that the claims allowed by the opposition division cannot be maintained. Furthermore, the proprietor had extended the allowed claim set with additional dependent claims. The board gave the proprietor the protection of reformatio in peius for the claims allowed by the opposition division but did examine the newly added dependent claims.

Tuesday, 7 June 2016

T 239/13 - Wait to be poisoned, or not

Today and tomorrow, oral proceedings for the referral G 1/15 "poisonous priorities/ poisonous divisionals / poisonous parents" (by T 557/13, pdf; amicus curiae briefs) are held. This opposition case is stayed in view of the relevance of the referral for the validity of priority for its independent claim.