Key points The alleged public prior use is a visit of a person to a plant. The Board, in machine translation: "In the present case, all evidence relating to the alleged obvious prior use was within the sphere of influence of the [former] opponent, who relied on a video made during a visit by one of its employees, the witness Mr. Traum, to Sante A. Kowalski Sp.j. The obviousness of the prior use therefore had to be proven without gaps by the opponent" The opponent had withdrawn the opposition in appeal before the summons. The proprietor and the opponent had both appealed the decision to main ..read more

Key points  Rule 103(2) EPC specifies that "The appeal fee shall be reimbursed at 75% if, in response to a communication from the Board of Appeal indicating its intention to start substantive examination of the appeal, the appeal is withdrawn within two months of notification of that communication. ". The Administrative Council introduced this provision in 2020. At that time, there were no such communications. The Administrative Council did not amend the Implementing Regulations to require the Boards to issue such a communication before they start the substantive examination -  ..read more

Key points This is the case where the opponent made five partiality objections. My earlier post concerned the dismissal of the 2nd, 3rd, 4th and 5th objection. The appeals on the merits have meanwhile been withdrawn. The present decision deals with the request for cost apportionment and was issued on 06.09.2024 and was taken by Board members B, H and K.  The minutes are here. Decision on the first objection: issued in writing on 16.09.2024. The board members are anonymised in the decision (?!).  The minutes are here, and mention the Board members N, H and D. The decision on the ..read more

Key points  Claim 1 is a second medical use claim and reads: "A composition comprising a combination of fish oil and juice [e.g. apple juice, claim 6] in an oil-in-water emulsion, for the use in treatment of cancer, wherein said fish oil is selected from fish oil having a totox value below 20 and omega-3 content above 10% by weight based on the total weight of the fish oil and wherein a suitable emulsifier is used to stabilize the emulsion, wherein the cancer types treated are selected from the group consisting of pancreatic cancer and neurological cancer." The Board, on sufficiency: "&n ..read more

Key points The Board, under inventive step, has to decide on the distinghuishing features. " The opposition division stated in reasons 7.4.2 that "the selection of a weight of 0.3 to 0.7 g within the range of 0.1 to 1.0 g could also be seen as novel" but saw no need to elaborate on this feature as "this had no bearing on novelty and inventive step"." " The Board shares the view of appellant (opponent 2), as pointed out in their statement of grounds of appeal, that the range of 0.3 to 0.7 g cannot be considered to be narrow compared to the known range of 0.1 to 1.0 g since it covers about half ..read more

Key points "In the notice of opposition, in point V. on page 14, the appellant [opponent]  raised an objection that the subject-matter of dependent claim 2 as granted, which is identical to claim 1 of the sole request in opposition and appeal, did not involve an inventive step in view of document E8 as closest prior art in combination with document E6. The decision under appeal does not contain any reasoning and conclusion concerning this objection, be it explicit or implicit. Therefore the decision does not meet the requirements of Rule 111(2), first sentence, EPC." "the final decision ..read more

Key points The OD did not hear a witness. The Board finds this a substantial procedural violation, sets aside the decision, and remits the case. There are some interesting details - including that the filing date of the Euro-PCT was in 2004 so the opposition procedure after remittal will end well after the end of the patent term. Grant: 2015 (after 1 communication of the Examining Division), first decision OD: 2018 (not novel over D1), first appeal decision (2021; novel over D1, remittal), second decision OD in 2022: reject opposition,   If you would like to learn more about wit ..read more

Key points The petition for review was filed on 03.02.2020. The decision of the Enlarged Board in a three-member composition to unanimously reject the petition as clearly unallowable was taken in writing on 12.07.2024 after the cancellation of the oral proceedings.  Hence, the procedure before the Enlarged Board in the three-member composition lasted 4 years and 5 months. Let me cite the Explanatory Remarks to the EPC 2000, Article 112a EPC, from OJ 2007 Special Edition 4 (link):  12. "The possibility of filing a petition for review must not cause long-lasting legal uncertainty for ..read more

Key points The OD had revoked the patent. " It was undisputed that among the requests filed by the appellant [proprietor] with the statement of grounds of appeal, only auxiliary requests 2A, 3A and 10D had been requests before the opposition division." "The appellant thus filed in appeal 106 requests which had not been pending before the opposition division." "The board does not agree with the respondent's argument that the sheer number of fresh requests rendered all the appellant's requests or those not filed before the opposition division inadmissible. A large number of requests is not a ..read more

Key points The decision deals with inventive step of a first medical use claim in the format of Article 54(4) EPC. "The purpose given in the claim is "for use as a medicament". The board also notes that according to the patent, the claimed antagonist is useful specifically in the treatment of "a disorder or condition selected from the group consisting of asthma; allergy; multiple sclerosis; or arthritis" (see paragraph [0011] and claim 4 of the patent as granted). " Claim 1 is, moreover, a functional antibody claim: "1. An antagonist of IL-33 for use as a medicament, wherein the a ..read more