Résumé de EPC2000 Art 087(1) pour la décision T2224/21 du 20.03.2024

In T 2224/21 the appellant (opponent) argued that it had not been proven that the applicant of the contested patent was the same as the applicant of the first application. It pointed out that it had been impossible for it to access all the relevant information relating to the disputed transfer because this was non-public information in the possession of the respondent (patent proprietor). Therefore, the burden of proof lay with the respondent. The appellant also argued that the contested patent did not relate to the same invention as disclosed in the priority document. The board disagreed. On the "same applicant" argument, the board referred to the principles set out in G 1/22, which were also applicable to the case in hand. A rebuttable presumption of priority entitlement applied. This was a strong presumption under normal circumstances since the other priority requirements (which established the basis for the presumption of priority entitlement) could usually only be fulfilled with the consent and even cooperation of the priority applicant. The party challenging the entitlement to priority could thus not just raise speculative doubts but must demonstrate that specific facts support serious doubts about the subsequent applicant's entitlement to priority. In the present case, the appellant only raised speculative doubts not supported by evidence. On the contrary, the evidence presented by the respondent reinforced the strong presumption. In this context, it was not apparent to the board why the alleged failure by the respondent to provide written evidence in the form of commercial contracts or agreements between the parties should go to the detriment of the respondent. Moreover, the appellant was not in a position in which any evidence for rebutting the presumption of entitlement would only be at the hands of the respondent. The board concluded that the respondent was entitled to the priority. On the "same invention" argument, the appellant put forward that the contested patent related to an "electronic vapour provision device" whereas the priority document disclosed an "electronic inhalation device". A vapour provision device was not meant to be necessarily used for inhalation purposes and also covered other kind of devices such as e.g. fog machines and engines exhausting toxic vapour not envisaged by the first application. The term "electronic vapour provision device" was technically different from the term "electronic inhalation device" with the consequence that the priority document and the contested patent did not cover the same invention as required by Art. 87(1) EPC. Moreover, according to the priority document electronic inhalation devices were typically cigarette-sized devices allowing a user to inhale a nicotine or essence vapour from a liquid store by applying a suction force to a mouthpiece. Electronic vapour provision devices as recited in claim 1 of the contested patent were not intended for inhalation. In fact, the claimed device did not comprise a mouthpiece which was required in the inhalation device of the priority document for directing the flow of vapour into the user's mouth. Thus, the subject- matter of claim 1 was not directly and unambiguously derivable from the disclosure in the priority document. The board was not convinced. In the board's opinion, the electronic vapour provision device of claim 1 as granted was also an inhalation device in the sense that the vapour delivered in the environment in which the device is operated was necessarily inhaled by any individual located nearby. Furthermore, as convincingly pointed out by the respondent, the application as originally filed described the electronic vapour provision device at issue essentially in the same way as the priority document disclosed an inhalation electronic inhalation device, i.e. as devices "allowing an user to inhale a nicotine vapour from a liquid store by applying a suction 10 force to a mouthpiece". The board also observed that the fact that the "mouthpiece" was omitted in claim 1 did not result in any new technical information because this feature was also omitted in claim 1 of the priority application. Therefore, the opposition division was correct in its finding that the patent as granted related to the same invention disclosed in the priority application.