{"id":4001,"date":"2016-01-28T17:32:00","date_gmt":"2016-01-28T16:32:00","guid":{"rendered":"http:\/\/klunker-ip.com\/right-to-be-heard-in-the-case-of-ex-officio-objections-r-0016-13-crystalline-micronisate\/"},"modified":"2025-11-01T14:43:30","modified_gmt":"2025-11-01T13:43:30","slug":"right-to-be-heard-in-the-case-of-ex-officio-objections-r-0016-13-crystalline-micronisate","status":"publish","type":"post","link":"https:\/\/klunker-ip.com\/en\/right-to-be-heard-in-the-case-of-ex-officio-objections-r-0016-13-crystalline-micronisate\/","title":{"rendered":"Right to be heard in the case of ex officio objections (R 0016\/13 “crystalline micronisate”)"},"content":{"rendered":"\n

Safeguarding the right to be heard is a central principle in official and judicial proceedings. A decision may not be based on grounds on which the party negatively affected by the decision was unable to comment. In the review proceedings R 0016\/13 “crystalline micronisate”, the Enlarged Board of Appeal revised a decision of the Board of Appeal in which the Board of Appeal had raised an ex officio objection to settlement attempts.<\/strong><\/p>\n\n

The Patents in dispute concerned a crystalline micronisate of tiotropium bromide characterized by, inter alia, certain parameter ranges for particle size, specific surface area, specific heat of solution and water content.<\/p>\n\n

The European Opposition Proceedings led to the revocation of the main claim. The opposition decision was based on a document D2 as the closest prior art. The claimed invention was suggested by this citation. <\/p>\n\n

The patent proprietor lodged an appeal and disputed that D2 was the relevant closest prior art. The citation D24 was to be assumed and the comparative tests already submitted by it in the Examination Proceedings showed that the patented products were characterized by unexpectedly high storage stability compared to this citation. <\/p>\n\n

In the oral proceedings before the Board of Appeal, the citations D2, D24 and D25 were discussed, but not the settlement attempts. At the end of the hearing, the Board of Appeal denied the patentability of the defended claims. In the subsequent written reasons for the decision, the Board of Appeal explained that the comparative tests were not meaningful because the parameters contained in the claim were not specified. <\/p>\n\n

The patent proprietor filed a petition for review against this decision with the Enlarged Board of Appeal of the European Patent Office.<\/p>\n\n

The Enlarged Board of Appeal sets aside the contested decision because it is based on a ground which was not raised at any point in the proceedings and which the patent proprietor could not recognize as critical to the decision on the basis of its expertise.<\/p>\n\n

In its reasoning, however, the Enlarged Board of Appeal first recalls a long list of decisions that deal with the requirements for safeguarding the right to be heard. In almost all of these earlier decisions, the allegation of a violation of the right to be heard was not substantiated. <\/p>\n\n

For example, it is not necessary for the adjudicating body to inform the parties in advance of all conceivable reasons for the decision (R 1\/08). It is sufficient if the relevance of a decision consideration has become clear in the course of the proceedings and can be recognized by a party informed about patent law and technology. It is sufficient if the parties have been given the opportunity to comment on the aspects relevant to the decision, for example on a passage of a citation that is relevant to the decision. <\/p>\n\n

In the present case, the Board of Appeal based its decision on grounds that were not put forward by either party, but by the Board itself. The Enlarged Board of Appeal notes that the task of the Board of Appeal in opposition appeal proceedings is actually to examine whether the grounds for revocation are valid or whether, on the basis of the requests and grounds of the notice of appeal, the contested decision should be set aside and the Patents maintained. In the present case, however, the Board of Appeal brought its own reasons into play. According to the Enlarged Board of Appeal, this is permissible. However, the Board of Appeal would have to bring such own considerations to the attention of the parties in the summons to the oral proceedings or at the latest during the oral proceedings, unless it can reasonably assume that the parties can recognize the considerations in advance without doubt. <\/p>\n\n

Although the patent proprietor repeatedly referred to the settlement attempts, the Board of Appeal never indicated that it had any concerns regarding the relevance of the attempts. This violates the right to be heard. <\/p>\n\n

This decision shows that the parties or their Patent Attorneys are required to analyze and comment very carefully on the aspects that are potentially relevant to the decision. However, if the Board of Appeal recognizes objections that have not been introduced into the proceedings by a party, it must bring this to the attention of the parties in good time. <\/p>\n\n

Left: www.epo.org\/law-practice\/case-law-appeals\/recent\/r130016du1.html<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Safeguarding the right to be heard is a central principle in official and judicial proceedings. A decision may not be based on grounds on which the party negatively affected by the decision was unable to comment. In the review proceedings R 0016\/13 “crystalline micronisate”, the Enlarged Board of Appeal revised a decision of the Board […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"footnotes":""},"categories":[1],"tags":[],"class_list":["post-4001","post","type-post","status-publish","format-standard","hentry","category-nicht-kategorisiert"],"acf":[],"_links":{"self":[{"href":"https:\/\/klunker-ip.com\/en\/wp-json\/wp\/v2\/posts\/4001","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/klunker-ip.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/klunker-ip.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/klunker-ip.com\/en\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/klunker-ip.com\/en\/wp-json\/wp\/v2\/comments?post=4001"}],"version-history":[{"count":0,"href":"https:\/\/klunker-ip.com\/en\/wp-json\/wp\/v2\/posts\/4001\/revisions"}],"wp:attachment":[{"href":"https:\/\/klunker-ip.com\/en\/wp-json\/wp\/v2\/media?parent=4001"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/klunker-ip.com\/en\/wp-json\/wp\/v2\/categories?post=4001"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/klunker-ip.com\/en\/wp-json\/wp\/v2\/tags?post=4001"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}