CABINET CHAILLOT

T0470/21

The patent proprietor's (appellant's) appeal lies from the opposition division's decision to revoke European patent No. 1 901 842 B1.
The board does not find that the opposition division conducted the proceedings in a surprising or even procedurally incorrect way to the detriment of the appellant, as alleged.
It is accepted practice that the opposition division may decide the case after the patent proprietor has been given the chance to comment on the opposition.
Not issuing at least one communication under Article 101(1) EPC cannot in itself substantiate an allegation of infringement of the right to be heard under Article 113 EPC.
The discretionary character when deciding on such a course of action, when no request for oral proceedings has been made, undoubtedly does not set an obligation on the opposition division to hold oral proceedings.
In the current case the decision is based on the grounds of opposition substantiated in the notice of opposition. The arguments put forward by the patent proprietor in its reply to the opposition were duly considered in the impugned decision.
If one ground of opposition prejudices the maintenance of the patent, the remaining issues do not need to be assessed.
Therefore, the opposition division's decision cannot be considered surprising to the appellant. It is in the nature of any contentious proceedings that one party considers the other party's submissions to be incorrect. It is, however, to be expected that the opposition division might not be convinced by one party's arguments and therefore might follow the other party's arguments and reasoning and will ultimately base its decision on them.
The opponent's submissions not contain any new fundamental arguments that were used in the impugned decision, and therefore the final decision could not be unexpected for the appellant. Therefore, the question of whether the opposition division was allowed to issue its decision is irrelevant in the case at hand.
The claim interpretation considered by the opposition division is considered to be a reasonable one and is to be taken into consideration for the assessment of Article 123(2) EPC. Article 69(1) EPC may be used to interpret the scope of protection under Article 123(3) EPC, but it is not used to determine whether the requirements of Article 123(2) EPC are met.
The board's understanding is also completely in line with T 1127/16, according to which a claim should essentially be read and interpreted on its own merits, even if the claim possibly includes inconsistencies.
The appellant's argument that the skilled person would immediately turn to the description to make sense of the wording "the mixture" puts too much emphasis on that wording in the light of the claim as a whole and is not in line with the fact that a technically skilled reader does not normally need any further description-based guidance.
The weight indicated in claim 1 as granted is not the same as that originally present in the application as filed.
Therefore, Article 100(c) EPC prejudices the maintenance of the patent as granted.
The appeal is dismissed.

 

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