| European Case Law Identifier: | ECLI:EP:BA:1991:T009790.19911113 | ||||||||
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| 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: |
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| 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). |
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| Relevant legal provisions: | |||||||||
| Keywords: | Novelty (affirmed) Inventive step (yes) Function of appeal proceedings Late-filed fresh ground of opposition Admitted by way of exception |
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Source: http://www.epo.org/law-practice/case-law-appeals/recent/t900097ex1.html
Date retrieved: 17 May 2021
17 references found.
Click X to load a reference inside the current page, click on the title to open in a new page.Offical Journal of the EPO
XOJ EPO SE 1/2021, p179 - Annex 1 - Index of published decisions of the boards of appeal and the Enlarged Board of Appeal - (as at 31 December 2020)
XOJ EPO SE 1/2020, p174 - Annex 1 - Index of published decisions of the boards of appeal and the Enlarged Board of Appeal - (as at 31 December 2019)
XOJ EPO SE 1/2019, p158 - XVI. - Index of published decisions of the boards of appeal and the Enlarged Board of Appeal - (as at 31 December 2018)