Monday, December 28, 2020 T 1604/16 - Boards have competence to review points of fact

What did this car look like before the repairs?

This is a decision with the second highest distribution classification 'B'. They do no not occur that often, so the issuing board considered this to be an important case. 

In first instance opposition proceedings, the opposition division concluded that a car sold by the opponent was novelty impairing prior use. This was evidenced by hearing the car buyer as a witness. In appeal the opposition has been withdrawn, and the board wonders if it is allowed to challenge the findings of fact established in first instance. The recent decision T 1418/17 suggests that a Board of appeal should not do so. This board does not agree, and provides the following catchword:

The boards have competence to review appealed decisions in full, including points of law and fact. This applies also to findings of fact of the department of first instance which are based, at least in part, on the evaluation of witness evidence obtained in the course of hearing a witness (reasons, point 3.1 and sub-points).

Friday, December 25, 2020 T 1350/09 - Different ornaments is inventive, merely unique sensorial signals are not

Using different ornaments can be inventive

Merry  Christmas from the DeltaPatents blogging team.  This decision shows that adding pretty ornament can be inventive even if providing a unique sensorial signal is not.

Claim 1 of the main requests in this opposition was:

1. A display pack comprising a see-through container which contains a plurality of unit-doses of a detergent product in a multiplicity of sensorially distinctive groups, and wherein the groups are distinctive in terms of colour, shape, size, pattern or ornament, or wherein the groups are distinctive in terms of providing a unique sensorial signal such as smell, sound, feel, etc."

The first auxiliary request struck the  final wherein clause : " or wherein the groups are distinctive in terms of providing a unique sensorial signal such as smell, sound, feel, etc." That made the difference.

Monday, December 14, 2020 T 483/17 - 'more up to the hilt' is not needed

The opponent in this case alleged that one of its own products is novelty destroying prior art. As this prior use lies within the sphere of the opponent, proof 'up to the hilt' was required. The board's analysis of this proof is very case-specific of course, but makes for interesting reading (if you're into that kind of thing). The proprietor makes a good effort to find inconsistencies in the  provided proof, which leads the Board to state at one point that if more evidence was provided, it 'would merely have been proven even more "up to the hilt"'. 

In the end the opponent manages to prove to the Board's satisfaction that it really did sell a product that falls under the scope of the claim. 

Monday, December 07, 2020 T 2620/18 - Appeal deemed not filed due to mistaken payment of small-entities appeal fee

The  Schedule of fees of the EPO has two amounts for the appeal fee. A small fee for natural persons or small entities, as defined in Rule 6(4) and (5) EPC, and a large fee for everybody else. What happens, if you accidently declare yourself a small entity, even though you are a large entity, and thus pay the wrong fee? When filing an appeal to an opposition this happened to the unlucky appellant. In this case the appeal was deemed not filed. In particular, an attempt to correct under Rule 139, was dismissed as the correction was not filed quickly enough. 

In the decision, the Board goes through of the ways in which this may be rectified, but comes to the conclusion that none apply.  The decision has the following abstract (translated from the German):

For the question of the insignificance of the difference between the full appeal fee and the appeal fee, see Reasons No. 4.8.

On the question of an implicit request for correction of a debit order and the timeliness of the submission of a request for correction, see Reasons 5.7 to 5.14.

On the issue of ex officio correction of amounts in debit orders, see Reasons 6.1 and 6.2.

For the question of interpretation of a debit order with regard to the appeal fee, see Reasons No. 8.4.

Below a machine translation of the sections cited in the abstract is provided, and below that, the original German. 

Tuesday, December 01, 2020 T 670/19 - Technical character of a scale for evaluating in a clinical setting

The subject of this examination decision was a scale for evaluating the lips and mouth region in a clinical setting. This type of scale could be utilized to assess the effectiveness of new lip enhancement techniques.

The claim in question, for example, features a "lip fullness scale" including images of human mouth areas.

Initially, objections were raised during examination that the claims lacked novelty. However, these objections were overcome, and the claims were then challenged for lacking technical character. The examining division argued that the claim related to purely abstract subject matter and thus did not meet the requirements of Article 52(2) and (3) of the European Patent Convention (EPC).

The Board of Appeal did not concur with this argument and found that the illustrations indicated a physical representation and thus had technical character. As a result, the case was remitted.

Monday, November 23, 2020 T 1631/17 - Not-explicit claim features cause exception to patentability

The invention relates to a  method of making dental prostheses using settable dental prosthetic material. The method is more efficient than existing methods since an impression is used of a human denture in which missing tooth substance is supplemented. 

Although not claimed, typically one would first provisionally repair the teeth and take an impression of the "finished" denture. In this way the desired external shape of the denture can be designed directly by the dentist on the patient and the production of the denture parts by the dental technician can be simplified considerably.

Even if not explicit, the Board considers that the claim still encompasses a surgical step, and so is excluded from patentability. 

The decision is in German. Below an machine translation of part of the decision is given, and below that a more extensive selection of the original German. 

Monday, November 16, 2020 User consultation on insertion of new Article 15a (oral proceedings by videoconference) in the Rules of Procedure of the Boards of Appeal (RPBA 2020)

The EPO's Boards of Appeal Committee (BOAC) and the President of the Boards of Appeal of the EPO have invited users to take part in the consultation on proposed new Article 15a RPBA. The proposed article is available in the English version. The consultation can be found here.

This online consultation will remain open until 12.00 hrs CET on 27 November 2020.

The proposed text reads:

Article 15a Oral proceedings by videoconference

(1) The Board may decide to hold oral proceedings pursuant to Article 116 EPC by videoconference if the Board considers it appropriate to do so, either upon request by a party or of its own motion.

(2) Where oral proceedings are scheduled to be held in person, the Chair may allow a party, representative or accompanying person to attend by videoconference. In exceptional circumstances, the Chair may decide that a party, representative or accompanying person shall attend by videoconference.

(3) The Chair may allow any member of the Board in the particular appeal to participate by videoconference. 

Par. (1) thus provides that oral proceedings may be held by videoconference.

Par. (2) implicitly provides that oral proceedings may be held in person; par (2) explicitly provides for hybrid oral proceedings where  a party, representative or accompanying person may (voluntarily) or shall (mandatorily) attend in oral proceedings held in person.

Par. (3) provides that any member of the Board, also the Chair, may participate by videoconference; implicitly, it provides that any Board member may participate by videoconference in oral proceedings by video conference as well as in hybrid oral proceeding as well as in oral proceedings where all parties, representatives and accompanying persons and (presumably) some -but not all- Board members attend in person.

The text of the proposed new provision and some explanatory remarks are set out in the document that is available from the Download menu in the original message. 

The text of the invitation on the webpage is duplicated below in its entirety (emphasis added).