T 0309/99 (Ultrasonic imaging agent/MOLECULAR BIOSYSTEMS) of 17.09.2004
- European Case Law Identifier
- ECLI:EP:BA:2004:T030999.20040917
- Date of decision
- 17 September 2004
- Case number
- T 0309/99
- Petition for review of
- -
- Application number
- 88120371.5
- IPC class
- A61K 49/00
- Language of proceedings
- English
- Distribution
- Published in the EPO's Official Journal (A)
- Download
- Decision in English
- OJ versions
- No OJ links found
- Other decisions for this case
- -
- Abstracts for this decision
- -
- Application title
- Concentrated stabilized microbubble-type ultrasonic imaging agent and method of production
- Applicant name
- MOLECULAR BIOSYSTEMS, INC.
- Opponent name
- Andaris Limited
- Board
- 3.3.02
- Headnote
- -
- Relevant legal provisions
- European Patent Convention Art 100 1973European Patent Convention Art 106(1) 1973European Patent Convention Art 113(1) 1973European Patent Convention Art 56 1973European Patent Convention Art 57 1973European Patent Convention Art 83 1973European Patent Convention R 71(2) 1973
- Keywords
- Auxiliary request containing amended claims prima facie inadmissible for late-filing but capable of maintaining patent revoked at first instance - right of other party to be heard - interest of third parties in certainty - suspensive effect of appeal - admissibility of request conditional as patentee's undertaking not to bring infringement proceedings until board's decision issued
Main request, first and second auxiliary requests: inventive step (no) - insufficient evidence that the objective problem was solved over the whole range claimed
Third auxiliary request - inventive step (yes) - problem solved over the whole range claimed, proposed solution was not obvious - Catchword
- -
- Citing cases
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ORDER
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The case is remitted to the first instance with the order to maintain the patent on the basis of claims 1 to 10 in the third auxiliary request filed on 10 January 2003 and a correspondingly adapted description.
3. The respondent's costs shall be apportioned so that the appellant pays to the respondent £ 494.
4. The undertaking given to the board by the appellant on 22 January 2003, not to start any infringement proceedings on the patent in suit until the effective date of the board's decision, is hereby discharged.