T 1889/13 () of 20.5.2015

European Case Law Identifier: ECLI:EP:BA:2015:T188913.20150520
Date of decision: 20 May 2015
Case number: T 1889/13
Application number: 02790278.2
IPC class: A61L 24/10
A61L 24/04
B01F 13/00
B01F 15/02
B65D 25/08
A61K 9/00
B01F 3/12
A61L 33/12
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 226 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished | Unpublished v2 | Unpublished v3
Applicant name: Ferrosan Medical Devices A/S
Opponent name: Baxter Innovations GmbH
Board: 3.3.10
Headnote: -
Relevant legal provisions:
European Patent Convention Art 24(3)
Keywords: -


Cited decisions:
T 1028/96
Citing decisions:

Summary of Facts and Submissions

I. The appeal lies from the decision of the opposition division to revoke European patent No. 1 458 425.

II. In its statement setting out the grounds of appeal, the appellant (patent proprietor) requested that the members of the present board who were involved in decision T 1676/11 relating to divisional application No. 09159082.8 of the patent in suit be excluded from taking part in the present appeal proceedings for suspected partiality under Article 24(3) EPC.

The members objected to are the chairman and the rapporteur of the board in its present composition.

III. The board informed the parties (communication of 7 October 2014) that it tended to regard the objection under Article 24(3) EPC as admissible and requested the parties to state whether they were prepared to agree to the board's taking a decision on its admissibility without oral proceedings.

IV. The respondent (opponent), which had not provided any argument against the admissibility of the appellant's objection, indicated such agreement, by letter dated 14 November 2014.

Reasons for the Decision

1. In accordance with the procedure described in decision T 1028/96 (OJ EPO 2000, 475), the board in its original composition, i.e. with the member(s) objected to, is competent to examine the admissibility of an objection under Article 24(3) EPC for the purpose of opening the procedure under Article 24(4) EPC, according to which the members objected to are replaced by their alternates and the board in the new composition decides on the allowability of the objection.

The board in its current composition will thus examine whether the appellant's objection is admissible in view of Article 24(3) EPC. The appellant's objection applies to the chairman and the rapporteur of the board in its present (original) composition.

2. The respondent has not contested the admissibility of the appellant's objection under Article 24(3) EPC.

3. The appellant raised its objection in the statement setting out the grounds of appeal. There is thus no objection arising from the requirements of Article 24(3), second sentence, EPC.

The appellant has not based its objection upon the nationality of the members, so that no objection arises from the requirements of Article 24(3), third sentence, EPC, either.

Lastly, the appellant has indicated facts and arguments in support of its objection. The objection is thus considered sufficiently substantiated.


For these reasons it is decided that:

The objection of suspected partiality on the part of board members P. Gryczka and R. Pérez Carlón is admissible.

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