T 0109/08 (Dental Composite/KERR) of 27.01.2012
- European Case Law Identifier
- ECLI:EP:BA:2012:T010908.20120127
- Date of decision
- 27 January 2012
- Case number
- T 0109/08
- Petition for review of
- -
- Application number
- 99925867.6
- IPC class
- A61K 6/083
- 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
- Optimum particle sized hybrid composite
- Applicant name
- Kerr Corporation
- Opponent name
- 3M ESPE AG
- Board
- 3.3.02
- Headnote
- -
- Relevant legal provisions
- European Patent Convention Art 111(1)European Patent Convention Art 111(2)European Patent Convention Art 114European Patent Convention Art 83European Patent Convention R 67 1973
- Keywords
- Admission of late-filed ground for opposition (yes) - discretionary power exercised erroneously - remittal
- Catchword
- A board of appeal, when reviewing the opposition division's exercise of discretion under Article 114(2) EPC, has the power to overrule a decision not to admit a late-filed ground of opposition, if the board concludes that the opposition division based its decision on manifestly incorrect technical assumptions or on an erroneous approach to applying said ground of opposition since this amounts to a misuse of the discretionary power under Article 114(2) EPC.
ORDER
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The case is remitted to the department of first instance for further prosecution.