T 1789/22 (HCMV complexes/GLAXOSMITHKLINE) of 12.12.2024
- European Case Law Identifier
- ECLI:EP:BA:2024:T178922.20241212
- Date of decision
- 12 December 2024
- Case number
- T 1789/22
- Petition for review of
- -
- Application number
- 13736518.5
- IPC class
- C12N 7/02A61K 39/245C07K 14/045
- Language of proceedings
- English
- Distribution
- No distribution (D)
- Download
- Decision in English
- OJ versions
- No OJ links found
- Other decisions for this case
- -
- Abstracts for this decision
- -
- Application title
- Complexes of cytomegalovirus proteins
- Applicant name
- GlaxoSmithKline Biologicals SA
- Opponent name
- Appleyard Lees IP LLP / Fleck Barbara
Sanofi Pasteur - Board
- 3.3.04
- Headnote
- -
- Relevant legal provisions
- European Patent Convention Art 107European Patent Convention Art 111(1)European Patent Convention Art 56European Patent Convention R 80Rules of procedure of the Boards of Appeal 2020 Art 013(1)
- Keywords
- Appeal decision - remittal to the department of first instance (no)
Amendment occasioned by ground for opposition - (yes)
Amendment occasioned by ground for opposition - amendments allowable (yes)
Amendment to appeal case - justification by party (no)
Examination of own motion - appeal proceedings
Inventive step - (yes) - Catchword
- 1. For considerations about the object of appeal proceedings and the rights of a non-appealing party, see Reasons, points 1 to 4. The provisions of Article 107, second sentence, EPC guarantee a non-appealing party the right to participate to pending appeal proceedings. However, they do not provide it an autonomous right to have requests which go beyond the scope of the appeal as defined by the appellant's statement of grounds of appeal, decided by the board (as a direct consequence of G 2/91, Headnote). By not filing an appeal, a non-appealing party has not contested the findings of the opposition division, beyond the framework of the appeal filed by the appellant.
2. A proprietor cannot be expected to file an amended description in appeal proceedings until an allowable set of claims is found. The lack of an adapted description constitutes no obstacle to the admittance of an amended set of claims into the appeal proceedings (see Reasons points 6.3 and 6.4). - Cited cases
- G 0002/91G 0007/91G 0008/91G 0009/91G 0010/91G 0009/92T 0588/90T 0737/92T 0646/02T 0750/11T 2094/12T 0807/16T 0862/16T 0146/17T 1042/18T 0256/19T 0155/20
- Citing cases
- -
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 on the basis of claims 1 to 10 of the main request, filed as auxiliary request 1 with the reply to the statement of grounds of appeal, a description and drawings possibly to be adapted thereto.