The patent in suit was based on divisional application, which was filed with a text identical to that of an earlier divisional application, which had been withdrawn and converted into an Italian utility model. According to the opponent, since the conversion into a national right was intended as a compensation for an application which had been withdrawn, the re-filing of the same subject-matter was an abuse of procedure, which, albeit not explicitly contravening any provision of the EPC, justified the revocation of the patent in suit.
The Board is not persuaded:
[3] The appellant submitted that re-filing the same subject-matter comprised in an earlier divisional application which had been withdrawn and converted in a national right was an abuse of procedure.
However, as acknowledged by the appellant itself, this re-filing does not fall under the grounds for opposition listed in A 100 EPC 1973, which may lead to revocation of the patent in opposition proceedings according to A 102(1) EPC 1973. Since the list of grounds for opposition of A 100 is exhaustive, there is no legal basis for revoking the patent in suit on this basis.
Therefore, the alleged re-filing of the same subject-matter cannot result in the revocation of the patent in suit.
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