T 2141/13 () of 26.1.2015

European Case Law Identifier: ECLI:EP:BA:2015:T214113.20150126
Date of decision: 26 January 2015
Case number: T 2141/13
Application number: 03738077.1
IPC class: A23D 9/02
A23K 1/14
A23L 1/30
A61K 8/67
A23D 9/00
C11B 1/10
C12N 1/00
A23K 1/16
A61Q 19/00
A61K 8/92
A61K 8/99
C12P 7/64
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 229.083K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Applicant name: DSM IP Assets B.V.
Opponent name: Suntory Holdings Limited
Board: 3.3.09
Headnote: -
Relevant legal provisions:
European Patent Convention Art 108
European Patent Convention R 99(2)
European Patent Convention R 101(1)
European Patent Convention R 103(2)
European Patent Convention R 126(2)
Keywords: Admissibility of appeal - statement of grounds (not filed)


Cited decisions:
Citing decisions:

Summary of Facts and Submissions

I. This decision concerns the appeals filed by the opponent and the patent proprietor against the decision of the opposition division that European patent No. 1 513 922 as amended in accordance with "new auxiliary request 1" filed during the oral proceedings before the opposition division meets the requirements of the EPC.

Claim 1 of new auxiliary request 1 read as follows:

"1. A microbial oil which comprises at least 35% of a desired PUFA, and has an anisidine value (AnV) of no more than 20."

II. The opponent filed a notice of appeal on 26 September 2013 and paid the appeal fee on the same day. The statement of grounds of appeal was filed on 12 December 2013.

III. The patent proprietor filed a notice of appeal on 14 October 2013 and paid the appeal fee on the same day.

IV. By communication of 15 January 2014, received by the patent proprietor on 22 January 2014, the registry of the board informed the patent proprietor that it appeared from the file that the written statement of grounds of appeal had not been filed, and that it was therefore to be expected that the appeal would be rejected as inadmissible pursuant to Article 108, third sentence, EPC in conjunction with Rule 101(1) EPC.

The patent proprietor was invited to file observations within two months of notification of the communication.

V. No answer to the registry's communication was received.

VI. By letter of 17 July 2014, the patent proprietor filed a response to the grounds of appeal of the opponent including a new main request and auxiliary requests 1 to 6.

Claim 1 of the new main request read as follows:

"1. A microbial oil which comprises at least 35% of arachidonic acid (ARA), and has an anisidine value (AnV) of no more than 20, which oil has been produced by a fungus of the species Mortierella alpina."

VII. By letter of 19 November 2014, the opponent withdrew its appeal.

Reasons for the Decision

1. No written statement setting out the grounds of appeal was filed by the patent proprietor within the time limit provided for by Article 108, third sentence, EPC in conjunction with Rule 126(2) EPC. In addition, neither the notice of appeal nor any other document filed contains anything that could be regarded as a statement of grounds pursuant to Article 108 EPC and Rule 99(2) EPC. Therefore, the appeal of the patent proprietor has to be rejected as inadmissible (Rule 101(1) EPC).

2. The opponent has withdrawn its appeal. Since no date for oral proceedings has been set and the board has not invited the opponent to file observations before issuing the present decision, the appeal fee has to be reimbursed at 50% (Rule 103(2)(c) EPC).

3. Apparently, in view of the facts and arguments provided by the opponent in its statement of grounds of appeal, the patent proprietor intended to pursue its patent in a more restricted form than found allowable by the opposition division (point VI).

Since, however, the patent proprietor's own appeal is inadmissible and the opponent has withdrawn its appeal, the appeal proceedings have to be terminated and the impugned decision remains as it stands.


For these reasons it is decided that:

1. The patent proprietor's appeal is rejected as inadmissible.

2. The opponent is reimbursed 50% of the appeal fee.

3. The appeal proceedings are terminated.

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