T 287/10 – Just Irrelevant

This is an appeal against the revocation of the opposed patent by the Opposition Division (OD).

The decision contains an interesting statement concerning the formal admissibility of the patent proprietor’s requests:

[1] The [patent proprietor] filed the current set of claims according to a main request and two auxiliary requests together with its statement of Grounds of Appeal. These sets of claims are the same as those on which the decision under appeal is based.

During the oral proceedings before the Board of Appeal, the [opponent] eventually agreed that the new claim sets were not belated and, hence, admissible as far as the appeal proceedings are concerned, but maintained that they were not admissible during opposition proceedings.

The Board does not see any relevance of this latter argument for the present proceedings. Even if the decision of the OD to revoke the patent would have been based on the formal ground of inadmissibility of the requests instead of on the grounds of A 83, this would not have terminated the proceedings irrevocably or prohibited the [patent proprietor’s] appeal.

For sake of completeness the Board wishes to express its full agreement with the OD’s finding insofar as the current claim sets are not deemed to be belated even during opposition proceedings.

Should you wish to download the whole decision, just click here.

The file wrapper can be found here.