Recent Selected EPO Boards of Appeal Decisions – Signatures, Attendance and Baby Formula

Some of the more recent selected decisions of the EPO Boards of Appeal (BoA) include for example, a decision reminding us that it should be pointed out in the patent how to combine different optional features, and the necessity from the perspective of legal certainty that a decision be signed by the Opposition Division. Additionally, there was  a decision where baby formula was not considered a therapeutic method.

The selected decisions list is a BoA list of decisions where the board has added a headnote or a catchwords. This according to the BoA is done if the board wishes to draw attention to something in the decision. For example, in July 2024 the board found it necessary to remind in decision T 0124/22 that it is polite to let the BoA and other party’s representative know, if a party will not attend the oral proceedings. And in April 2024 in case T 0815/22 the board confirmed that the use of infant formula to promote normal growth, is not a therapeutic method described under article 53(c) EPC.

In April 2024 the BoA also noted in case T 0572/19  that the signature requirement under Rule 113(1) EPC applies to the written decision and its substantiation. According to the board the signature requirement is not just a formality, but instead it is an essential step to prevent arbitrariness and abuse. Further on in the process, the absence of a valid signature was not considered an error or obvious mistake under Rule 140 EPC. Due to this substantial procedural violation from the side of the Opposition Division the appealed decision was determined to be invalid. It was set aside and remitted to the Opposition Division for a new decision on the merits. In summary, a mistake by the Opposition Division, such as the omission of a signature on a decision, means the case might need to be handled again.

In a June 2024 case T 1809/20 the BoA reminded that it is already established that the content of the application as filed is not a source from which features can be combined artificially to create “a particular embodiment without the presence of a pointer to combine the features of the separate embodiments”. In this case the argument, that the examples of the application function as pointers, was rejected due to various reasons. A patent basically cannot be a mere catalogue of features from which to pick and choose to make different embodiments.

To learn more about these decisions see: T 0124/22, T 0815/22, T 0572/19 and T 1809/20.

For more decisions of the BoA see: Decisions of the Boards of Appeal of the EPO.

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