T 1137/97 (Marek's Disease Virus Vaccine/AMERICAN HOME PRODUCTS CORPORATION) of 14.10.2002

European Case Law Identifier: ECLI:EP:BA:2002:T113797.20021014
Date of decision: 14 October 2002
Case number: T 1137/97
Application number: 91203365.1
IPC class: A61K 39/255
Language of proceedings: EN
Distribution: B
Download and more information:
Decision text in EN (PDF, 47.578K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Cell free marek's disease virus vaccine
Applicant name: Akzo Nobel N.V.
Opponent name: American Home Products Corporation
Board: 3.3.04
Headnote: -
Relevant legal provisions:
European Patent Convention 1973 Art 106
European Patent Convention 1973 Art 107
European Patent Convention 1973 Art 108
European Patent Convention 1973 Art 111(1)
European Patent Convention 1973 Art 54
European Patent Convention 1973 R 64
Keywords: Transfer of opponent status - allowable (yes)
Appeal by original opponent - filed before entry at EPO of transfer of opposition - admissible (yes)
Appeal by transferee of opposition - filed before entry at EPO of transfer of opposition - admissible (no)
Prior publication - date of receipt of journal in library - strength of presumptions based on circumstantial evidence
Apportionment of costs (yes) - fixed amount awarded by board

1. A transfer of an opposition together with the relevant business assets in whose interests the opposition has been filed is allowable (following G 4/88). Where both the original opponent and the transferee each file an appeal before the transfer of the opposition has been notified to the EPO with supporting evidence of the transfer, the appeal of the original opponent is admissible, but the appeal of the transferee is inadmissible. The transferee however acquires the status of opponent and appellant as of the date when the EPO has been requested to make the transfer and has been supplied with adequate documentation evidencing the transfer.

(Points 1 to 7).

2. The strength of the presumption in favour of the accuracy of a Received date marking appearing on the copy of a journal in a library as evidence of the actual date when the journal was made available to the public will depend on the library routine used. A handwritten date on the cover of a journal not accepted as correct in view of other evidence. (Points 8 to 14).

3. Relevant document belatedly introduced was allowed into the procedure. The belated submission was, however, considered to have caused unnecessary costs to be incurred, and so to make equitable an apportionment of costs in favour of respondent patentee. A fixed sum of Euro 2,500 was awarded by board of appeal itself, in the exercise of its discretion under Article 111(1) EPC to avoid the need for an investigation of an exact amount which would be more burdensome for the parties. (Points 18 to 20).

Cited decisions:
G 0004/88
J 0026/95
T 0326/87
Citing decisions:
T 0602/99
T 0136/01
T 1091/02
T 0085/03
T 0229/03
T 0503/03
T 0956/03
T 0006/05
T 1421/05
T 0293/07
T 1668/07
T 1697/07
T 0960/08
T 1911/09
T 1032/10
T 0184/11
T 0423/11
T 0244/12
T 0545/12
T 2357/12
T 0194/15

22 references found.

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Offical Journal of the EPO

Case Law Book: I Patentability

Case Law Book: IV Divisional Applications

Case Law of the Enlarged Board

General Case Law