T 2106/08 – Don’t Infer Too Much

All parties appealed against the decision of the Opposition Division to maintain the patent in amended form. One of the issues raised before the Board of appeal was the validity of the priority claim:

[5.1] The opponent argued for the first time during the oral proceedings before the board that the claims were not entitled to the priority date of 21 February 2000, because the patent proprietor and former applicant is Borealis Technology Oy, whereas the GB priority document No. 0004043.6 was filed in the name of Borealis Polymers Oy. The opponent argued that Borealis Technology Oy and Borealis Polymers Oy were different companies and that there was no assignment of the priority between the two companies on file.

However the mere observation that the priority document was filed in the name of Borealis Polymers Oy whereas the originally filed patent application was filed in the name of Borealis Technology Oy does not necessarily mean that the priority is not validly claimed. The fact that no assignment document, or a similar document, is on file does not mean that such a transfer had not taken place (or was even not necessary in view of the relationship between the two companies).

In any event this objection could have been raised earlier in order to allow the board to investigate this issue and the patent proprietor to submit appropriate evidence. Admitting this objection at such a late stage of the proceedings would have required the adjournment of the oral proceedings. Hence, the board exercising its discretion under Article 13(3) RPBA decided not to admit this objection into the proceedings.

[5.2] The opponent also argued that Claim 10 was not entitled to the priority date and argued that the amended/corrected ranges of:

(a) 0.01 to 0.2 wt% for the organic phosphite or phosphonite antioxidant, and

(b) 0.01 to 0.5 wt% for the metal stearate

were not disclosed in the priority document.

However, the priority document discloses on page 16, lines 17-23, that the polymer moulding powder should preferably comprise 0.01 to 0.3 wt%, e.g. 0.1 to 0.2 wt% organic phosphite or phosphonite antioxidant, and 0.01 to 0.5 wt% metal stearate. The range of 0.01 to 0.2 wt% for the organic phosphite or phosphonite antioxidant results from the combination of the lower value of the broader range with the higher value of the narrower range, which, following the case law of the Boards of Appeal, is considered to be disclosed in the priority document and does not justify an objection to the entitlement to the priority.

[5.3] No further objections with regard to entitlement to priority were raised against the claims of the proprietor’s sole request. The board sees no reason to raise an objection of its own and therefore considers that all these claims are entitled to the priority date of 21 February 2000.

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