T 0097/90 (Lubricating agents) of 13.11.1991

European Case Law Identifier: ECLI:EP:BA:1991:T009790.19911113
Date of decision: 13 November 1991
Case number: T 0097/90
Application number: 84306559.0
IPC class: D06M 15/647
Language of proceedings: EN
Distribution: A
Download and more information:
Decision text in EN (PDF, 926 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: OJ | Published
Title of application: -
Applicant name: Takemoto Yushi
Opponent name: Hoechst
Board: 3.3.01
Headnote: I. The wording of Article 114(1) EPC does not mean that the Boards of Appeal have to conduct rehearings of the first instance proceedings, with unfettered right, and indeed obligation, to look at all fresh matter regardless of how late it was submitted. Article 114(2) as well as Article 111(1) EPC set a clear limit to the scope of any new matter that may be introduced into an appeal by the parties so that cases on appeal must be, and remain, identical or closely similar to those on which first instance decisions have been rendered (following T 26/88, OJ EPO 1991, 30; T 326/87, OJ EPO 1992, 522; T 611/90, OJ EPO 3/1992).
II. Where fresh evidence, arguments or other matter filed late in the appeal raise a case substantially different from that decided by a first instance, that case should be referred back to the first instance where this is demanded by fairness to the parties - with an award of costs against the party responsible for the tardy introduction into the appeal proceedings (cf. point 2 of the Reasons for the Decision).
III. Cases where a new ground of objection is raised late in the appeal should only be referred back to the first instance where the admittance of the new ground would result in the revocation of the patent (following T 416/87, OJ EPO 1990, 415). Where the maintenance of the patent would not be put at risk the Board can either refuse to admit the fresh ground of objection, or admit it into the appeal proceedings, and decide it against the opponent. The latter can be preferable, leading, as it does, to detailed written reasons being made available for possible further use in litigation before national courts (cf. point 2, last paragraph, of the Reasons for the Decision).
Relevant legal provisions:
European Patent Convention 1973 Art 54(1)
European Patent Convention 1973 Art 54(2)
European Patent Convention 1973 Art 56
European Patent Convention 1973 Art 111(1)
European Patent Convention 1973 Art 114(1)
European Patent Convention 1973 Art 114(2)
Keywords: Novelty (affirmed)
Inventive step (yes)
Function of appeal proceedings
Late-filed fresh ground of opposition
Admitted by way of exception
Catchwords:

-

Cited decisions:
-
Citing decisions:
T 0229/90
T 0852/90
T 0182/91
T 0951/91
T 0966/95
T 0190/97
T 0577/97
T 0111/98
T 0221/99
T 0402/01
T 0339/06
T 0931/06

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