T 2019/20 of 21.11.2023
- European Case Law Identifier
- ECLI:EP:BA:2023:T201920.20231121
- Date of decision
- 21 November 2023
- Case number
- T 2019/20
- Petition for review of
- -
- Application number
- 06787258.0
- Language of proceedings
- English
- Distribution
- Distributed to board chairmen (C)
- Download
- Decision in English
- OJ versions
- No OJ links found
- Other decisions for this case
- -
- Abstracts for this decision
- Abstract on Art 13(2) RPBA 2020
- Application title
- POLYMER COATINGS CONTAINING DRUG POWDER OF CONTROLLED MORPHOLOGY
- Applicant name
- Micell Technologies, Inc.
- Opponent name
- BIOTRONIK AG
- Board
- 3.3.10
- Headnote
- -
- Relevant legal provisions
- European Patent Convention Art 123(2)European Patent Convention Art 56European Patent Convention Art 83Rules of procedure of the Boards of Appeal 2020 Art 012(1)Rules of procedure of the Boards of Appeal 2020 Art 012(2)Rules of procedure of the Boards of Appeal 2020 Art 012(3)Rules of procedure of the Boards of Appeal 2020 Art 012(4)Rules of procedure of the Boards of Appeal 2020 Art 012(5)Rules of procedure of the Boards of Appeal 2020 Art 013(1)Rules of procedure of the Boards of Appeal 2020 Art 013(2)Rules of procedure of the Boards of Appeal 2020 Art 015(3)Rules of procedure of the Boards of Appeal Art 11
- Keywords
- Main request - Inventive step - (no)
Remittal - special reasons for remittal (no)
Amendment to appeal case - amendment within the meaning of Art. 12(4) RPBA (no)
Auxiliary request 1 - Inventive step - (yes)
Sufficiency of disclosure - (yes)
Amendments - allowable (yes) - Catchword
- The substance of the request filed during the oral proceedings before the board - i.e. the claimed subject-matter and the attacks against it - is fully encompassed by both the appellant's and the respondent's initial appeal case within the meaning of Article 12(1) to (3) RPBA. The request certainly limits the potential issues for discussion. This means that, in view of the totality of the facts of the present case, the filing of this request, although formally an amendment and as such potentially subject to the strict provisions of Article 13(2) RPBA, in substance does not constitute an amendment of a party's case within the meaning of Article 12(4) RPBA, but rather a partial abandonment of the initial appeal case. There is no apparent reason not to admit such a request under any of the Articles 12(5), 13(1) or 13(2) RPBA. (Reasons 23.)
- Cited cases
- T 2295/19
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The case is remitted to the opposition division with the order to maintain the patent with the following claims and a description to be adapted thereto:
Claims: Nr. 1 to 11 of the auxiliary request 1 filed in the oral proceedings before the board.