T 0911/06 (Order of the requests/DA PONTE) of 11.11.2009

European Case Law Identifier: ECLI:EP:BA:2009:T091106.20091111
Date of decision: 11 November 2009
Case number: T 0911/06
Application number: 97954466.5
IPC class: H02J 9/06
Language of proceedings: EN
Distribution: B
Download and more information:
Decision text in EN (PDF, 68.056K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Hybrid generator apparatus
Applicant name: Da Ponte, Manuel Dos Santos
Opponent name: Cummins Inc.
Board: 3.5.02
Headnote: -
Relevant legal provisions:
European Patent Convention Art 83
European Patent Convention Art 100(b)
European Patent Convention Art 107
European Patent Convention Art 111(1)
European Patent Convention Art 113(2)
European Patent Convention Art 123(2)
European Patent Convention R 99(2)
Rules of procedure of the Boards of Appeal Art 13(1)
Rules of procedure of the Boards of Appeal Art 15(1)
Keywords: Patent as granted, patent as maintained - insufficiency of disclosure (yes)
Main and first auxiliary requests - added subject-matter (yes)
Third auxiliary request - remitted to the first instance
Catchwords:

When, as in the present case, it is clear from the statement of grounds of appeal that the appellant proprietor contests a decision that the patent cannot be maintained as granted, and when the appellant proprietor finally requests the maintenance of the patent as granted as an auxiliary request which is subordinate to a main or auxiliary request for maintenance of the patent in a new amended form that was filed during the appeal, the correctness of the decision refusing the maintenance of the patent as granted has to be examined first, before examining the new amended claims (see point 3.7 of the reasons).

Since in the present case it is clear from the statement of grounds of appeal that the appellant opponent contests a decision maintaining the patent in a particular amended form, and since, in the appellant proprietor's final requests, the maintenance of the patent in that particular amended form is the subject of an auxiliary request that is subordinate to one or more requests for maintenance of the patent in some other amended form, the Board decides, after examining the correctness of the decision refusing the maintenance of the patent as granted, to examine the correctness of the decision maintaining the patent in the particular amended form that was the subject of the appealed decision before examining, and deciding upon, the patent in any other amended form finally requested (see point 3.11 of the reasons).

See also point 12 of the reasons (remittal).

Cited decisions:
G 0002/91
G 0008/91
G 0009/91
T 0488/94
T 0169/96
T 0345/98
T 1058/04
Citing decisions:
-

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