2.4.4 Re-filing of same subject-matter

In T 1287/07 the appellant had submitted before the board that re-filing the same subject-matter comprised in an earlier divisional application which had been withdrawn and converted into a national right was an abuse of procedure. The board clarified that this re-filing did not fall within the grounds for opposition exhaustively listed in Art. 100 EPC, and there was no legal basis for revoking the patent in suit on this basis. Therefore, the alleged re-filing of the same subject-matter could not result in the revocation of the patent in suit.

In T 1437/10 the appellant filed new requests during oral proceedings which claimed subject-matter essentially identical to the scope of protection of the granted European patent for which the appellant was the proprietor and for which the application at issue was the earlier application in accordance with Art. 76(1) EPC. Consequently, the subject-matter of the new requests had already been decided in favour of the appellant and a second decision on the same subject-matter was superfluous. The board therefore exercised its discretion under Art. 13(1) RPBA so as not to admit the new requests into the procedure.

On the related issue of "double patenting" see in this chapter II.F.5. below.