Friday, 30 October 2009

T 1562/06 - Exhaustion ? Who Has Said Exhaustion ?

The appellant’s sole objection of lack of novelty relies on the application of the principle indicated in the decision T 998/99 that priority can only be claimed once from a particular priority document for a particular invention. The board however agrees with the conclusions in the subsequent decisions T 15/01 and T 5/05, according to which the conclusion reached in T 998/99 is not valid. Therefore the document D1 does not form part of the prior art according to A 54(3). [2.1] 

Even though I tend to agree, I find it regrettable that the Boards, after the very controversial decision T 998/99 (L’Oréal), only treated this decision with contempt and did not refer the question to the Enlarged Board of Appeal, which would be a better forum for discussing such a fundamental point of law than the various technical Boards.

To read the whole decision, click here.