T 1727/12 Sufficiency of disclosure for a broad claim
In this decision the Board has to go into different forms of lack of disclosure. The Board is not a big fan of the British term ‘Biogen sufficiency’ and goes back to the original decision T 409/91 and terminology used in that decision (“the patent monopoly should be justified by the actual technical contribution to the art”).
In opposition proceedings, Art.84 cannot be used in this respect. In the opinion of the Board, the opposition division has not been convincing in proving that Art.83 was violated. In particular, the opposition division believed that features of dependent claims 3-5 were required for the invention of claim 1, but the division did not come up with options which the skilled person would not know how to carry out. The burden of proof was thus not met.
The Board remitted the case back to the opposition division for further prosecution. No oral proceedings were held, since the request "In the event that the Patent is not to be maintained in the form in which it was granted, the Proprietor requests oral proceedings" does not cover the situation wherein the Board does not take a final decision on the case itself but remits the case.
The Board remitted the case back to the opposition division for further prosecution. No oral proceedings were held, since the request "In the event that the Patent is not to be maintained in the form in which it was granted, the Proprietor requests oral proceedings" does not cover the situation wherein the Board does not take a final decision on the case itself but remits the case.
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