Tuesday, 8 October 2013

Coffee pods at the ready

The hearing in appeal case T 1674/12 relating to Nestec's European patent EP2103236 is due to be held tomorrow, 9 October 2013, at the EPO in Munich. For readers unfamiliar with the case, see my earlier post here. Since I last posted on the subject there has been further correspondence, the most interesting bit of which to my eyes is a letter filed just a few days ago by one of the opponents. This letter raises a question that the opponent submits "depending on whether certain issues arise during the oral hearing". The opponent asks:
1) How is the proviso in G 2/98 [point 6.7] that "The use of a generic term or formula in a claim for which multiple priorities are claimed in accordance with Article 88(2), second sentence, EPC is perfectly acceptable under Articles 87(1) and 88(3) EPC, provided that it gives rise to the claiming of a limited number of clearly defined alternative subject-matters" to be applied?
2) What is the test in law for a "limited number of clearly defined subject matters"?
The question, similar to that raised in my last post, goes to the heart of the partial priority issue on which a significant part of the appeal depends, and on which there is now a clear discrepancy in the case law of the EPO Boards of Appeal. Although it would obviously delay resolving the issue for quite a while, a referral to the Enlarged Board would seem to me to be a necessary next step so that this issue can be properly addressed.

Given that the Board of Appeal will issue a decision at the hearing, but which will not appear in writing for a while, any information on how the case goes would be gratefully received, either as comments to this post (anonymous if necessary) or by email to me at tuftythecat@gmail.com.

UPDATE 11 October: According to a press releases here, picked up by the WSJ here, the Board of Appeal has revoked the patent. This presumably means that the Board did not consider it worth referring a question to the Enlarged Board on the partial priority issue. This could perhaps be because the patent was invalid for other reasons, but we will not know for sure until the Board issue their written decision.


  1. So far, a deafening silence. More coffee needed, perhaps.

    1. I've not gone back to check, but didn't the summons allow three days for the oral proceedings? They might not make a decision until tomorrow.

    2. I didn't notice that bit, but it certainly looks like too much to get through in only one day. I will try to be a bit more patient.

    3. I have just checked. The summons does indeed say that 3 days are allowed for the hearing, from 9-11 October.