Friday, 13 August 2010

T 699/07 – Let The Colour In

[2.3] During oral proceedings before the Board the [opponent] filed a coloured copy of a table summarising the experimental results of Tables 1-4 of the patent in suit (document D23). The [patent proprietor] requested the Board not to admit this very late filed document.

This document is nothing more than a summary of results already present in the contested patent and was merely submitted for enhanced comprehensibility of the [opponent’s] arguments. It did not confront the [patent proprietor] with new facts or new evidence. Merely representing a summary of the data of the patent in suit, it can not be considered either as an attempt to surprise the [patent proprietor] or the Board.

Furthermore, a black and white copy of this table had already been filed in the procedure before the first instance in support of the [opponent’s] arguments concerning inventive step, and in its reply to the grounds of appeal the [opponent] explicitly referred to its submissions before the first instance. Hence, the Board decided to admit this document into the procedure (Article 13(1) and 13(3) RPBA).

If you wish to download the whole decision, please click here.


Rimbaud said...

Hello Oliver,

WIPO is currently reflecting on allowing color drawings (and photos) in PCT applications, see

Patent applications will soon become works of art, but this will lead to a broad new field of 123(2) issues: "the applicant should not have amended colors when entering EP phase".

Oliver said...

Your remark on A 123(2) is stimulating to say the least. As a matter of fact, changes of colour are quite frequent during oral proceedings before the Boards. A great number of attorneys have been observed to have changed colour during the proceedings. Well-known variations include going as red as a beetroot or, conversely, adopting more pale colours. ;-)