T 0116/18 du 11.10.2021
- Identifiant européen de la jurisprudence
- ECLI:EP:BA:2021:T011618.20211011
- Date de la décision
- 11 octobre 2021
- Numéro de l'affaire
- T 0116/18
- Requête en révision de
- -
- Numéro de la demande
- 12002626.5
- Classe de la CIB
- A01N 43/56A01N 51/00
- Langue de la procédure
- Anglais
- Distribution
- Publiées au Journal officiel de l'OEB (A)
- Téléchargement
- Décision en anglais
- Autres décisions pour cet affaire
- T 0116/18 2023-07-28
- Résumés pour cette décision
- -
- Titre de la demande
- Insecticide compositions
- Nom du demandeur
- Sumitomo Chemical Company, Limited
- Nom de l'opposant
- SYNGENTA LIMITED
- Chambre
- 3.3.02
- Sommaire
- -
- Dispositions juridiques pertinentes
- Decision AC of 28 June 2001 on the transitional provisions under Art 7of the Act revising the EPCEuropean Patent Convention Art 100(b)European Patent Convention Art 112(1)(a)European Patent Convention Art 54European Patent Convention Art 56Rules of procedure of the Boards of Appeal 2020 Art 013(2)Rules of procedure of the Boards of Appeal Art 12(4)Warner-Lambert Company LLC v Generics (UK) Ltd t/a Mylan anr [2018] UKSC 56
- Mots-clés
- Grounds for opposition - insufficiency of disclosure
Novelty
Inventive step
Referral to the Enlarged Board of Appeal
Late-filed evidence - submitted with the statement of grounds of appeal
Late-filed evidence - submitted shortly before oral proceedings - Exergue
- The following questions are referred to the Enlarged Board of Appeal for decision.
If for acknowledgement of inventive step the patent proprietor relies on a technical effect and has submitted evidence, such as experimental data, to prove such an effect, this evidence not having been public before the filing date of the patent in suit and having been filed after that date (post-published evidence):
1. Should an exception to the principle of free evaluation of evidence (see e.g. G 3/97, Reasons 5, and G 1/12, Reasons 31) be accepted in that post-published evidence must be disregarded on the ground that the proof of the effect rests exclusively on the post-published evidence?
2. If the answer is yes (the post-published evidence must be disregarded if the proof of the effect rests exclusively on this evidence), can the post-published evidence be taken into consideration if, based on the information in the patent application in suit or the common general knowledge, the skilled person at the filing date of the patent application in suit would have considered the effect plausible (ab initio plausibility)?
3. If the answer to the first question is yes (the post-published evidence must be disregarded if the proof of the effect rests exclusively on this evidence), can the post-published evidence be taken into consideration if, based on the information in the patent application in suit or the common general knowledge, the skilled person at the filing date of the patent application in suit would have seen no reason to consider the effect implausible (ab initio implausibility)?
Order
For these reasons it is decided that:
The following questions are referred to the Enlarged Board of
Appeal for decision.
If for acknowledgement of inventive step the patent proprietor relies on a technical effect and has submitted evidence, such as experimental data, to prove such an effect, this evidence not having been public before the filing date of the patent in suit and having been filed after that date (post-published evidence):
1. Should an exception to the principle of free evaluation of evidence (see e.g. G 3/97, Reasons 5, and G 1/12, Reasons 31) be accepted in that post-published evidence must be disregarded on the ground that the proof of the effect rests exclusively on the post-published evidence?
2. If the answer is yes (the post-published evidence must be disregarded if the proof of the effect rests exclusively on this evidence), can the post-published evidence be taken into consideration if, based on the information in the patent application in suit or the common general knowledge, the skilled person at the filing date of the patent application in suit would have considered the effect plausible (ab initio plausibility)?
3. If the answer to the first question is yes (the post-published evidence must be disregarded if the proof of the effect rests exclusively on this evidence), can the post-published evidence be taken into consideration if, based on the information in the patent application in suit or the common general knowledge, the skilled person at the filing date of the patent application in suit would have seen no reason to consider the effect implausible (ab initio implausibility)?