|European Case Law Identifier:||ECLI:EP:BA:1982:T000781.19821214|
|Date of decision:||14 December 1982|
|Case number:||T 0007/81|
|Language of proceedings:||DE|
|Download and more information:||
|Title of application:||-|
|Headnote:||The extent of the appeal within the meaning of Rule 64(b) EPC is sufficiently identified if a European patent application has been refused by the decision impugned and it is stated in the notice of appeal that an appeal is being lodged against that decision in its entirety. In such a case it can initially be assumed that the appellant adheres to the submission on which the impugned decision was based.|
|Relevant legal provisions:||
|Keywords:||Appeal - identification of extent|
Summary of Facts and Submissions
I. European patent application No. 78 100 161.5 (publication number 0 000 331) filed on 15 June 1978 and published on 24 January 1979, claiming priority from the Swiss prior application of 23 June 1977, was refused by the decision of the Examining Division of the European Patent Office dated 21 October 1980... The grounds given for the refusal were that the subject-matter of the application to the extent claimed - i.e. the main claim filed on 5 December 1979 concerning a method of mass-dyeing linear polyamides characterised by the use of salts from 1:2 chromium complexes of monoazodyes and certain special amines with 1 - 18 C-atoms, and also its dependent claims - did not involve an inventive step...
II. The applicant lodged an appeal against this decision in a letter received on 28 November 1980, with payment of the relevant fee. The letter of appeal cites the number of European patent application 78 100 161.5 and states that an appeal is being lodged against the refusal of 21 October 1980. Further information on the extent to which amendment or cancellation of the impugned decision is requested was not submitted within the time-limit for appeal...
III. After the Board raised objections in a letter dated 24 September 1981 - and following a reply from the appellant on 22 January 1982 - in a further letter dated 4 June 1982, preventing the grant of a patent, the appellant submitted a new version of the application on 26 August 1982. After several amendments agreed on by telephone on 26 October 1982 were made, the final main claim now reads:... This claim differs fundamentally from the main claim applicable at the time that the appeal was lodged and which was refused by the Examining Division...
Reasons for the Decision
1. The appeal complies with the requirements of Articles 106 - 108 and Rule 64 EPC. The appeal also complies with Rule 64(b) which stipulates that the notice of appeal shall identify the extent to which amendment or cancellation of the impugned decision is requested. The content of the impugned decision is purely and simply the refusal of the last version of the European patent application then ruling. The formulation "to lodge an appeal" against the decision is therefore to be interpreted as meaning that the setting-aside of a decision in its entirety and the grant of the European patent with the final documents of the European patent application is being sought. The appeal is therefore admissible...
7. For the reasons outlined, the Board considers the appeal to be well-founded. But this does not mean that the decision of the Examining Division was not justified. The patent claims to be assessed by the Examining Division were far wider than the claims now ruling...
For these reasons, it is decided that:
1. The decision of the Examining Division dated 21 October 1980 is set aside.
2. The case is remitted to the first instance with the order to grant a European patent on the basis of the documents submitted on 28 August 1982 with the following amendments as agreed by telephone...