T 0611/90 (Fresh Case) of 21.02.1991

European Case Law Identifier

ECLI:EP:BA:1991:T061190.19910221

Date of decision

21 February 1991

Case number

T 0611/90

Petition for review of

Application number

83306484.3

IPC class

C08F 210/16

Language of proceedings

English

Distribution

Published in the EPO's Official Journal (A)

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Decision in English

OJ versions

Other decisions for this case

Abstracts for this decision

Application title

Applicant name

Mitsui

Opponent name

DSM Research

Board

3.3.03

Headnote

1. Under Article 106(1) EPC, appeals lie from decisions rather than from the grounds of such decisions. Apart from other deficiencies, an appeal raising a case entirely different from that on which the decision under appeal was based is still admissible if it is based on the same opposition ground (point 2 of the Reasons).

2. If there is such an entirely different case, it may, subject to the other circumstances of the case, be inappropriate for an Appeal Board to deal itself with its allowability. The public's and the parties' interest in having the proceedings speedily concluded may then be overridden by the requirement that appeal proceedings should not become a mere continuation of first- instance proceedings (point 3 of the Reasons).

3. In the absence of strong mitigating circumstances for the late filing of such a fresh case, the late-filing party should bear all the additional costs incurred by his tardiness (point 5 of the Reasons).

Relevant legal provisions

European Patent Convention Art 104 1973 European Patent Convention Art 106(1) 1973 European Patent Convention Art 108 1973 European Patent Convention Art 114 1973

Keywords

Admissibility of appeal (affirmed)
Reasons unconnected with those of appealed decision, but still within same opposition ground
Remittal to first instance (affirmed)
Entirely new case not yet examined before
Apportionment of costs
Absence of reasons for his tardiness given by the opponent

Catchword

Cited cases

Citing cases

G 0002/24 T 0229/90 T 0443/90 T 0832/90 T 0852/90 T 0025/91 T 0039/91 T 0318/91 T 0374/91 T 0506/91 T 0938/91 T 0951/91 T 0003/92 T 0229/92 T 0684/92 T 0152/93 T 0847/93 T 0970/93 T 1016/93 T 0191/94 T 0201/94 T 0257/94 T 0676/94 T 0147/95 T 0252/95 T 0389/95 T 0585/95 T 0708/95 T 1007/95 T 0062/96 T 0191/96 T 0855/96 T 1044/97 T 0368/98 T 0869/98 T 0527/99 T 0875/99 T 0932/99 T 0955/99 T 0962/99 T 0333/01 T 0402/01 T 0717/01 T 0064/02 T 0454/02 T 0853/02 T 0237/03 T 0156/04 T 0963/04 T 1029/05 T 1557/05 T 1146/06 T 1265/07 T 1685/07 T 0369/08 T 0349/09 T 0584/09 T 1676/09 T 1363/10 T 2549/12 T 0509/13 T 2262/14 T 2069/15 T 2233/15 T 0972/16 T 0238/19

ORDER

For these reasons it is decided that:

1. The appeal is admissible.

2. The Opposition Division's decision is set aside.

3. The case is remitted to the Opposition Division for further prosecution.

4. The costs in the future proceedings before the Opposition Division, and in any subsequent appeal, shall be apportioned so that the opponent shall pay to the patentee the whole of the costs which will be legitimately incurred by the patentee in dealing with the case as remitted as above.