Friday, 10 November 2017

T 2002/13 - Extension of subject matter


In this opposition appeal, the proprietor intended to limit the claim 1 as granted as follows:


A method to detect the presence or absence of an MREJ type xi methicillin-resistant Staphylococcus aureus (MRSA) strain characterised as having within the right extremity of SCCmec the sequence of SEQ ID NOs 17, 18 or 19 the SEQ ID NO 17 comprising:
generation of SCCmec right extremity junction sequence data by
contacting a sample to be analyzed for the presence or absence of said MRSA strain, said MRSA strain including a Staphylococcal cassette chromosome mec (SSCCmec) element containing a mecA gene inserted into chromosomal DNA, thereby generating a polymorphic right extremity junction (MREJ) type xi sequence that comprises sequences from both the SCCmec element right extremity and chromosomal DNA adjoining said right extremity, with a first primer and a second primer, wherein said first and second primers are at least 10 nucleotides in length, and wherein said first primer hybridizes with said SCCmec element right extremity of an MREJ type xi sequence selected from the group consisting of SEQ ID NOs: 17, 18 and 19 and complements thereof, and wherein said second primer hybridizes with a chromosomal sequence of S. aureus  and wherein each of said first and second primer hybridizes with said sequence of SEQ ID NO: 17 or complements thereof  to specifically generate an amplicon if such MRSA strain is present in said sample; and
detecting the presence or absence of said amplicon.

At first glance these amendments limit the claim. In particular, the board acknowledges that the definition of the second primer is narrower than its definition as granted. Nevertheless, the combination of features amount to extension of the conferred protection.


Wednesday, 1 November 2017

T 514/14 - Respondent could have reacted to the raised objections well in advance to the oral proceedings


In this opposition appeal, the parties were summoned to oral proceedings. In a communication issued in preparation therefor, the Board drew the parties' attention to some issues likely to be addressed at the oral proceedings. The Board inter alia expressed concerns regarding the clarity of claim 1 held allowable by the Opposition Division and pointed out that compliance with Article 84 EPC might also become an issue with regard to the auxiliary requests. Concerning the issue of compliance with Article 123(3) EPC, the Board drew the parties' attention to a specific paragraph of the Case Law Book. The Respondent/proprietor commented on the points addressed in the Board's communication, and defended inter alia its position submitting that the amended claims of all the already pending requests were clear (Article 84 EPC) and complied with Article 123(3) EPC. It nevertheless filed three additional sets of amended claims as auxiliary requests 4 to 7. Oral proceedings before the Board were held. The debate focused on the compliance of the pending claims with Articles 84 EPC and 123(3) EPC. During the oral proceedings, the Respondent filed a further amended set of claims as auxiliary request 1bis, to be intercalated between auxiliary requests 1 and 2. The Appellant/opponent asked not to admit auxiliary request 1bis due to its late-filing. 

Monday, 30 October 2017

T 1889/13 - Right to non-overlapping boards?


In this opposition appeal, the appellant requested that the members of the board who were involved in decision T 1676/11 relating to a divisional application of the opposed patent be excluded from taking part in the present appeal proceedings for suspected partiality under Article 24(3) EPC.

The arguments of the appellant can be summarised as follows:

  • The critical issues of the present appeal were in essence the same as the critical issues in the previous appeal proceedings T 1676/11 concerning the divisional application. 
  • The board members having decided the appeal for the divisional application would have difficulty in re-examining and deciding the present case without having a preconceived or anticipatory judgment or without giving rise to suspicion of such preconceived or anticipatory judgment.

Tuesday, 24 October 2017

T 1972/13 - Examination at an end?



With his response "R3" to summons for oral proceedings, the applicant filed amended claims of respectively a main and an auxiliary request, together with arguments. In addition, the applicant requested "cancellation of the oral proceedings and the continuation of the examination in writing, possibly supplemented by a telephone interview with the primary examiner, if the Examination Division deems it expedient". Subsidiarily it was requested "that the oral proceedings are conducted by video-conference, using IP technology; and that the date of the oral proceedings is changed". Shortly after, the applicant's representative contacted the primary examiner by telephone asking "whether the proceedings could be cancelled, and if not whether they could be postponed ... or held by visio [sic] conference". The examiner replied "that he would have a look at the case and at the internal instructions before giving an answer" (idem). With a communication a few weeks later, the applicant was informed that the oral proceedings were cancelled and that the procedure would be continued in writing. Subsequently, the decision to refuse the application was issued. In its reasons, it said "The examining division consented to the request of the applicant to cancel the oral proceedings and to continue the examination in writing, thereby issuing this decision." The applicant appealed.

Friday, 13 October 2017

T 0231/13 - no inventor needed, a professional representative is enough


At the opening of the oral proceedings their postponement was requested, because one of the inventors, who wished to accompany the professional representative, could not be present due to serious illness that required medical intervention. This was proven by a medical certificate dated 28 July 2017 and filed during the oral proceedings. The applicant submitted that the request for postponement could not have been made before because the need for medical intervention had been sudden and the representative had been informed of it only the evening before the oral proceedings. The Board denied the request, as it was not made as soon as possible, and because the party was duly represented. 

Tuesday, 10 October 2017

T 1204/12 - Stern but fair?

The city 'Brusque' in Brazil

In this examination appeal, the invention relates to the entering and setting of an 'availability status' in a 'Push-to-talk' application in a mobile communication device, with the independent method claims defining the associated data processing. Unfortunately for the applicant-now-appellant, the Board of Appeal quickly 'strips away' the semantic meaning of the data (e.g. 'alert status') and the data processing entities ('server', 'communication device'), to conclude that the invention merely pertains to 'storing/transmitting the data on/to different computers'. Any remaining feature+effect combinations are swept off the table as 'obvious'.

The claim of the main request:

1. A method of establishing a user communications availability in an application (206) operative on a mobile communications device (200), the method comprising:

determining an alert status associated with the mobile communications device (200);

responsive to the determination of the alert status being in a first state, presenting to a user a first plurality of options, each of the first plurality of options corresponding to establishing the user communication availability in the application with a status applicable to said application (206);

responsive to the determination of the alert being in a second state, presenting to the user a second plurality of options having at least one option different from the first plurality of options, each of the second plurality of options corresponding to a user communication availability with a different status applicable to said application (206);

receiving a selection from the user of an option from said first or second plurality of options;

responsive to said selection of the option from said first or second plurality of options, auto­matically establishing and setting, at the mobile communications device, the status of the user communication availability in said application (206) in accordance with the status corresponding to the selected option; and

sending the status of the user communication availability in said application to a server (114), wherein the sending causes the server (114) to transmit an availability status representative of the status of the user communication availability in said application to at least one other mobile communications device associated with said application.

Thursday, 5 October 2017

T 2016/16 - All due care: assistant well-trained but not properly instructed/ not properly supervised by the patent attorney

The applicant timely filed a notice of appeal and paid the appeal fee. However, the applicant missed the 4-month period to file the grounds of appeal, because the 4-month period had never been recorded in the internal electronic docketing system.  With the late-filed statement of grounds, the applicant filed a request for re-establishment of rights in respect of the time limit for filing the statement of grounds of appeal was filed and the prescribed fee was paid. A well-trained, competent and experienced assistant, who has the CIPA Patent Administrator Qualification had overlooked to record the 4-month period and the responsible patent attorney did not think to check whether the period for filing the grounds of appeal had been logged in the docketing system. The Board concluded that, even with a system of double checking in place, the representative is not discharged from his or her duty to properly instruct and supervise the assistant (cf. T 1465/07, reasons 18, last paragraph). In the case at hand, the appellants have not shown that the assistant was properly instructed or that she was properly supervised. Thus, the appellants have not discharged their burden to prove the existence of a normally satisfactory monitoring system. The omission from the docketing system of the time limit for filing the statement of grounds can therefore not be said to equate to an isolated mistake in a normally satisfactory monitoring system. The request for re-establishment of rights is to be refused.

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