Decisions affirming cross-procedural res judicata effect 

In T 51/08 the appellant submitted amended claims corresponding to the second auxiliary request of the parent application which had already been refused on appeal. The board held that subject-matter on which a final decision had been taken by a board of appeal in the parent application became res judicata and could not be pursued in the divisional application (see also T 790/10, see however also T 2145/11, in which the board distinguishes its case from T 51/08 as the claims at issue were not identical to those in the proceedings related to the parent patent).

In T 1155/13 an objection of lack of sufficiency was raised by the appellant against the patent based on a divisional application. The board considered, however, that T 468/09 had dealt with an insufficiency objection in relation to the patent granted on the basis of the parent application. Since decision T 468/09 was res judicata and dealt with insufficiency of disclosure in relation to the same embodiments, and the facts were the same, the current board had no power to examine this objection again (with reference to T 51/08).

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