Saturday, 31 December 2011

T 1007/09 – Talking With Asterisks

In its decison revoking the opposed patent, the Opposition Division (OD) found the main request (patent as granted) as well as the three auxiliary requests on file to lack inventive step.

The Board did not agree and maintained the patent as granted. It also considered the question of whether the appeal fee should be reimbursed:

*** Translation of the French original ***

[9] Pursuant to R 111(2) the decisions of the EPO which are open to appeal shall be reasoned.

According to the established case law a lack of reasoning of a decision constitutes a substantial procedural violation within the meaning of A 113(1) (cf. inter alia T 763/04; T 1182/05; T 246/08).

In the present case the impugned decision comprises a blank paragraph (paragraph 6.2.3).

The opposition division is of the opinion that ***********************

It is obvious that the OD intended to give the reasons justifying its dismissal of the second auxiliary request, but it did not do so, whereby it kept the appellant in the dark as to the reasons for the dismissal.

Therefore, the impugned decision is affected by a substantial prodedural violation. As the appeal is granted, it is necessary to order the refund of the appeal fee pursuant to R 103(1)(a).

Should you wish to download the whole decision (in French), just click here.

The file wrapper can be found here.


Anonymous said...

Conjecture: It's possible that the examiner printed out the right version of the decision, and circulated it amongst the division, but uploaded the wrong version to the server. D*mn*d c*mp*t*rs...

Something like that once happened to me; but fortunately still at an early stage of the procedure and not in the decision.