The enlarged board of appeal (EBA) of the European patent office effectively ended the possibility of poisonous priority. The EBA held that entitlement to partial priority may not be refused for a claim encompassing alternative subject-matter by virtue of generic expressions (generic “OR” claims) if the priority document discloses part of that subject matter in…

The duration of proceedings before the Boards of Appeal (BoA) currently is the EPO’s biggest problem in regard to speed. According to the latest Annual Report by the Boards of Appeal, the average length of inter partes proceedings is 37 months (up 1 month from 2015), i.e. more than three years. In 2016, two appeals…

Early certainty in opposition proceedings is clearly a desirable objective, and the President’s commitment to lowering the average duration of (normal) opposition proceedings to 15 months on the average deserves praise. In our experience, the new commitment has already started to result in that the summons to oral proceedings are issued sooner and that the…

The Dutch Government has warned the social situation at the EPO will have to improve soon. The International Labour Organisation (ILO) has complained it is not acceptable that over half of the workload of its Tribunal is generated by complaints filed against the European Patent Office. Parliaments in Germany and France have called for action…

The Board of Appeal decided that the invention was not sufficiently disclosed, as no seeds had been deposited and a skilled person could not obtain the claimed plants on the basis of the information in the application. More specifically, it was not possible for the skilled person to ascertain what the parental strain “Capsicum annuum…

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…

Will 2017 be the year that the Unitary Patent system sees the light of day? A year ago the general expectation was for the system to fully launch this spring, with a provisional period starting late 2016. After the Brexit vote considerable delays were expected, but an announcement by the UK government late November led…

Not surprisingly the Brexit and its consequences for the Unitary Patent system, but also the continuing social unrest at the European Patent Office were among the most popular topics on the Kluwer Patent Blog in 2016. One item in our top ten has a title which can be used again this year without any problem:…

The Board of Appeal found that the examining division had committed a substantial procedural violation by raising tentative patentability objections rather than completing an improperly justified incomplete search. Thus tentative examination had improperly been used as a condition for completing the search, rather than completing the search first and examining later. This forced the applicant…