T 0250/05 (Use of nitric oxide for systemic treatment/THE BRIGHAM AND WOMEN' … of 4.3.2008

European Case Law Identifier: ECLI:EP:BA:2008:T025005.20080304
Date of decision: 04 March 2008
Case number: T 0250/05
Application number: 94912377.2
IPC class: A61L 9/04
Language of proceedings: EN
Distribution: B
Download and more information:
Decision text in EN (PDF, 50 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Systemic effects of nitric oxide inhalation
Applicant name: THE BRIGHAM AND WOMEN'S HOSPITAL, INC.
Opponent name: AIR PRODUCTS AND CHEMICALS, INC.
L'AIR LIQUIDE S.A.
Board: 3.3.02
Headnote: 1. When following the principles set out in Enlarged Board of Appeal decision G 0001/93 for dealing with the "conflicting requirements of Article 123, paragraphs 2 and 3 EPC" in an amended set of claims, it has to be investigated whether the patent as granted contains subject-matter which extends beyond the content of the application as filed within the meaning of Article 123(2) EPC, which also limits the scope of protection conferred by the patent, and which directly affects the assessment of the amended claims in respect of the requirements of Article 123(2) and (3) EPC (points 2.1 to 2.5 of the reasons for the decision).
2. Apart form the fact that Article 54(5) EPC 2000 (entry into force 13 December 2007) does not apply to a patent granted in 2001, Article 123(3) EPC would not allow the change of category of a granted use claim into a product claim, even if drafted as a purpose-related product claim. (points 3.4 to 3.6 of the reasons for the decision).
Relevant legal provisions:
European Patent Convention 1973 Art 100(c)
European Patent Convention Art 123
European Patent Convention Art 53
European Patent Convention 1973 Art 111(1)
European Patent Convention R 103
European Patent Convention 1973 Art 52(4)
Keywords: Main request, auxiliary requests 1 to 5 contravene Article 123 EPC; sixth auxiliary request meets the requirements of Article 123 EPC
Medical indication (yes)
Remittal
Catchwords:

-

Cited decisions:
G 0005/83
G 0001/93
Citing decisions:
T 1673/11
T 1780/12

9 references found.

Click X to load a reference inside the current page, click on the title to open in a new page.

EPC Articles

EPC Implementing Rules

Case Law Book: II Conditions to be met by an Application

Case Law of the Enlarged Board

General Case Law