T 0250/05 (Use of nitric oxide for systemic treatment/THE BRIGHAM AND WOMEN'S HOSPITAL, INC.) of 04.03.2008
- European Case Law Identifier
- ECLI:EP:BA:2008:T025005.20080304
- Date of decision
- 4 March 2008
- Case number
- T 0250/05
- Petition for review of
- -
- Application number
- 94912377.2
- IPC class
- A61L 9/04
- Language of proceedings
- English
- Distribution
- Distributed to board chairmen and members (B)
- Download
- Decision in English
- OJ versions
- No OJ links found
- Other decisions for this case
- -
- Abstracts for this decision
- -
- Application title
- Systemic effects of nitric oxide inhalation
- Applicant name
- THE BRIGHAM AND WOMEN'S HOSPITAL, INC.
- Opponent name
- AIR PRODUCTS AND CHEMICALS, INC.
L'AIR LIQUIDE S.A. - Board
- 3.3.02
- Headnote
1. When following the principles set out in Enlarged Board of Appeal decision G 0001/93 for dealing with the "conflicting requirements of Article 123, paragraphs 2 and 3 EPC" in an amended set of claims, it has to be investigated whether the patent as granted contains subject-matter which extends beyond the content of the application as filed within the meaning of Article 123(2) EPC, which also limits the scope of protection conferred by the patent, and which directly affects the assessment of the amended claims in respect of the requirements of Article 123(2) and (3) EPC (points 2.1 to 2.5 of the reasons for the decision).
2. Apart form the fact that Article 54(5) EPC 2000 (entry into force 13 December 2007) does not apply to a patent granted in 2001, Article 123(3) EPC would not allow the change of category of a granted use claim into a product claim, even if drafted as a purpose-related product claim. (points 3.4 to 3.6 of the reasons for the decision).
- Relevant legal provisions
- European Patent Convention Art 100(c) 1973European Patent Convention Art 111(1) 1973European Patent Convention Art 123European Patent Convention Art 52(4) 1973European Patent Convention Art 53European Patent Convention R 103
- Keywords
- Main request, auxiliary requests 1 to 5 contravene Article 123 EPC; sixth auxiliary request meets the requirements of Article 123 EPC
Medical indication (yes)
Remittal - Catchword
- -
ORDER
For these reasons it is decided that:
1. The decision under appeal is set aside
2. The case is remitted to the first instance for further prosecution on the basis of the sixth auxiliary request filed with the letter dated 4 February 2008.