T 1044/23 of 24.09.2025
- European Case Law Identifier
- ECLI:EP:BA:2025:T104423.20250924
- Date of decision
- 24 September 2025
- Case number
- T 1044/23
- Petition for review of
- -
- Application number
- 15728901.8
- IPC class
- C08L 23/06
- 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
- -
- Application title
- POLYETHYLENE COMPOSITION FOR INJECTION MOULDING
- Applicant name
- Basell Polyolefine GmbH
- Opponent name
- The Dow Chemical Company
- Board
- 3.3.03
- Headnote
- -
- Relevant legal provisions
- European Patent Convention Art 54(2)European Patent Convention Art 56RPBA_2020_Art_012(6)_(2020)_Sent_2
- Keywords
- Late-filed evidence - should have been submitted in first-instance proceedings (yes)
Novelty - public prior use
Novelty - state of the art
Novelty - availability to the public
Inventive step - closest prior art
Inventive step - non-obvious modification - Catchword
- Decision G 0001/23 does not exclude that a non reproducible product be selected as the closest prior art. Instead the specific circumstances of the case should be analysed.
The extent to which a non-reproducible product must be modified to obtain the claimed subject-matter, and the level of knowledge about that product and its manufacture required to achieve it, are not yet relevant for determining whether the product can be regarded as the closest prior art. These aspects instead relate to later stages of the problem-solution approach, namely identifying the distinguishing features between the product and the claimed subject-matter and/or assessing whether the skilled person, starting from that product, would have been able to obtain the claimed one (Reasons 5.1.3 to 5.1.11). - 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 the claims of auxiliary request II filed with the rejoinder to the statement of grounds of appeal and a description to be adapted if necessary.