EPO: T 1689/12, European Patent Office, Board of Appeal, 5 October 2016
Kluwer Patent Blog
January 11, 2017
Please refer to this post as:, ‘EPO: T 1689/12, European Patent Office, Board of Appeal, 5 October 2016’, Kluwer Patent Blog, January 11 2017, http://patentblog.kluweriplaw.com/2017/01/11/epo-t-168912-t-168912-05-october-2016/
Although it did not admit a broader claim 1, an EPO board of appeal allowed an auxiliary request wherein claim 1 as granted was replaced by a combination of independent claims from different first instance requests. This combination was admitted because the first instance department had had the opportunity to decide on both claims in the impugned decision. The opposition division had maintained the patent with the first claim and not admitted requests that included the second. Because the opponent did not appeal, the reformatio in peius ban prevented arguments against the second claim based on arguments against the first claim.