T 0970/17 14-10-2021

Reasons for the Decision

1. The subject-matter of the contested patent

1.1 The patent relates to implantable vascular access ports, which provide a convenient way of repeatedly delivering a medical agent into a patient's vasculature (paragraph [0005]). As shown for example in Figure 6 reproduced below, these access ports typically include a housing (56) defining a fluid reservoir (66) sealed by a needle-penetrable septum (80). The reservoir communicates with a predetermined location in the patient's vasculature through a catheter (73) attached to the access port. Once the access port and the catheter have been implanted, a fluid (F) may be infused into the vasculature by a needle (90) passed through the patient's skin and penetrating the septum. Hence, problematic repeated needle punctures into the vasculature can be avoided (paragraph [0005]).

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1.2 A wide variety of medical imaging technologies require the use of a contrast medium that is infused into the patient's vasculature at a sufficiently high flow rate to reach and maintain a suitable concentration throughout a selected scan time and within a selected region of the anatomy (paragraphs [0001] and [0003]). If a vascular access port as described above is used to infuse the contrast medium, then because of the viscosity of the contrast medium and the small diameter of the infusion catheter in particular, maintaining the high flow rate requires the contrast medium to be injected at a high pressure to overcome the significant pressure drop taking place through the infusion system from the injector to the distal end of the catheter (paragraph [0077] and Figure 7 reproduced below). This can be achieved using conventional systems for what is known as "power injection", configured for developing very high injection pressures (paragraphs [0002] and [0004]).

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1.3 When power injection is used to inject a fluid into an access port, a similarly high internal port pressure develops within the reservoir of the port (Figure 7 above). While access ports may be specifically structured to withstand such high internal port pressures (for example by constraining the septum within the housing by a mortise-and-tenon mechanism as disclosed in paragraphs [0078]-[0079] and shown in Figure 8), improperly pressurising an access port may cause it to rupture and thus may have dramatic consequences for the patient (paragraph [0004]).

The contested patent aims at providing a way of easily identifying whether an access port can be safely used with power injection (paragraphs [0100] and [0123]). To this end, the patent suggests providing the septum of the port with a radiopaque material configured to form a selected pattern (199) when an X-ray is taken through the septum, as shown for example in Figures 34-35 reproduced below:

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Once the access port has been implanted, this pattern can be used to identify the access port as being suitable for power injection (paragraph [0100]).

2. Admissibility of the proprietor's appeal and admittance of the proprietor's claim requests

2.1 First auxiliary request

2.1.1 Claims 1-16 of the current first auxiliary request are identical to claims 1-16 of the first auxiliary request considered in the decision under appeal. The opposition division found these claims unallowable, formulating several objections in the decision (points 15, 17 and 19).

As submitted by the opponent, it is true that claim 17 differs from claim 17 of the first auxiliary request considered in the decision under appeal in that the word "vascular" has been omitted. However, due to this amendment, claim 17 is identical to claim 1 of the fourth auxiliary request, which was found allowable by the opposition division and on the basis of which the contested patent was maintained (point 23 of the decision).

2.1.2 The proprietor's statement of grounds of appeal, in particular points 4.1 and 4.2 in combination with points 3.1, 3.3 and 3.4, addresses the objections raised in the decision under appeal against claims 1-16. It provides reasons why, in the proprietor's opinion, the impugned decision should be set aside in respect of those claims but upheld as far as claim 17 is concerned.

Therefore, the proprietor's statement of grounds of appeal meets the admissibility requirements of Article 108 EPC, third sentence, in combination with Rule 99(2) EPC at least in respect of the first auxiliary request. As a consequence, the proprietor's appeal as a whole is admissible and the first auxiliary request is to be admitted into the appeal proceedings.

2.1.3 Claims directed to the use of a septum or to a vascular access port were already presented in the first-instance proceedings and considered by the opposition division (see for example the main request or the first auxiliary request considered in the decision under appeal). Therefore, filing claims to this effect on appeal does not amount to creating a fresh case, contrary to the opponent's argument.

The opponent's objection that the scope of these claims had shifted from the scope of the claims as granted concerns their compliance with Article 123(3) EPC, i.e. at most the allowability of the corresponding claim requests. This, however, has no bearing on the above conclusion regarding the admissibility of the proprietor's appeal and the admittance of the first auxiliary request. The same applies to the other requests containing any such claims.

2.2 Main request

Compared with claim 1 of the main request considered in the decision under appeal, the feature "the septum being suitable for being repeatedly pierced or punctured with a hollow slender element such as a cannula or a needle" has been omitted in claim 1 of the current main request.

This amendment, which leads to a broadening of the claimed subject-matter, does not address the reasons why the opposition division did not allow the main request, namely that claim 1 contained added subject-matter, as discussed in point 14.3 of the decision. Furthermore, the proprietor has not provided any reasons why this amendment was not submitted in the first-instance proceedings.

For these reasons, the board decided not to admit the main request into the appeal proceedings (Article 12(4) RPBA 2007, which applies in this case by virtue of the transitional provisions of Article 25(2) RPBA 2020).

2.3 Second and third auxiliary requests

The current second and third auxiliary requests are based on the first auxiliary request considered in the decision under appeal. In each of them, the subject-matter of claim 1 has been increasingly narrowed by the addition of further limiting features. These amendments represent an appropriate reaction by the proprietor to the opposition division's finding that the subject-matter of claim 1 of the first auxiliary request lacked novelty over D1 and D2 (point 19 of the decision).

The added features are not technically complex and merely relate to the definition of the access port as an implantable vascular access port and to its suitability for performing power injection, two issues which were already discussed in the first-instance proceedings as reflected by the decision under appeal.

Moreover, the proprietor filed these requests with its statement of grounds of appeal, i.e. at the earliest possible stage of the appeal proceedings.

For these reasons, the board decided to admit the second and third auxiliary requests into the appeal proceedings (Article 12(4) RPBA 2007).

3. Admittance of documents HE2-HE7 and D20

The proprietor filed HE2-HE7 for the first time with its statement of grounds of appeal. In response, the opponent filed D20 with its reply. The admittance of these documents is thus subject to Article 12(4) RPBA 2007.

3.1 The proprietor filed HE2-HE7 to support its view that the decision under appeal was wrong to disregard the expressions "vascular" and "suitable for power injection" as being limiting features that distinguished the claimed subject-matter from D1 and D2 (points 19.1-19.3 and 21.1-21.3 of the decision).

3.1.1 However, HE3, HE4 and HE7 were published after the priority date claimed by the contested patent. Therefore, these post-published documents have no bearing on the claim interpretation in the case in hand. The board also shares the opponent's concerns about HE6, which bears the statement "Originally published July 2004" but was not retrieved from a web archiving service until 2017. It is thus unclear whether this document has been amended since then.

The proprietor did not provide counter-arguments in support of the admittance of these documents. The board therefore decided not to admit HE3, HE4, HE6 and HE7 into the proceedings.

3.1.2 On the other hand, HE2 and HE5 were published in 2000 and are thus prior art under Article 54(2) EPC. Both can be regarded as reflecting the common general knowledge of the person skilled in the art. The board therefore decided to admit these documents.

3.2 The opponent filed D20 in response to the filing of HE2 to counter the proprietor's arguments about the term "vascular" based on this document. D20 is prior art under Article 54(2) EPC. In view of the decision to admit HE2, the board found it appropriate to admit D20 as well.

4. Admittance of documents HE3a and HE4a

The proprietor filed these documents after the notification of the summons to oral proceedings.

According to Article 13(2) RPBA 2020, any amendment to a party's appeal case made after notification of a summons to oral proceedings is, in principle, not to be taken into account unless there are exceptional circumstances, which have been justified with cogent reasons by the party concerned.

The issuing of the board's preliminary opinion on objections already on file, which, as explained by the proprietor, triggered a further search that revealed HE3a and HE4a, does not constitute exceptional circumstances justified by cogent reasons for filing these documents at such a late stage. Consequently, the board decided not to admit these documents.

5. First and second auxiliary requests - novelty over D1 and D2

5.1 It is common ground that D1 discloses an implantable device (column 1, first paragraph; see Figure 2 reproduced below) comprising a septum (needle-penetrable dome 34; column 5, lines 3-6) including a radiopaque material configured to form a selected pattern when an X-ray is taken through the septum (dot code 70; column 5, lines 37-40).

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The device defines a subcutaneous, implantable reservoir (reservoir chamber 36) into which a fluid can be injected via a needle that is passed through the skin and penetrates the dome 34 (column 5, lines 3-6). The reservoir chamber 36 is connected via a catheter to a heart atrium (column 3, lines 36-44). Therefore, once implanted, the device in D1 enables a fluid injected into the reservoir to be ultimately infused into the heart cavity, and thus to reach the patient's vasculature.

5.2 In dispute between the parties is whether this device represents a "vascular access port" as defined by claim 1.

On a plain reading of this expression, a vascular access port is a port configured to provide a route by which the patient's vasculature is "accessed", i.e. reached. Contrary to the proprietor's view, this does not necessarily require that blood can be aspirated from the vasculature through the access provided. The description of the contested patent itself discloses that a vascular access port is "for introducing a fluid into the vasculature" and provides "a convenient method to repeatedly deliver medicants to remote areas of the body" (paragraph [0005]), whereas sampling blood from the patient is presented merely as a secondary optional feature (paragraph [0005]: "Additionally, the port may be used to aspirate blood from the patient"; emphasis added by the board). HE2, to which the proprietor referred, does not support a different view.

Therefore, contrary to the proprietor's argument, the person skilled in the art would regard the device in D1, which provides access to the patient's vasculature as explained in point 5.1 above, as a "vascular access port", especially "for providing subcutaneous access to a patient". The fact that the device in D1 may additionally have further functions (such as the drainage of cerebrospinal fluid entering the reservoir through an additional inlet) does not contradict this conclusion.

It follows that the subject-matter of claim 1 of the first and second auxiliary requests is not novel over D1 (Article 54(1) and (2) EPC).

5.3 D2 discloses a similar device to D1 (see Figure 2 reproduced below, in which most of the features shown have the same reference sign as in D1), comprising the same features as claim 1, in particular a septum 34 including a radiopaque material (radiopaque dot code 56 not shown in Figure 2; see column 5, lines 38-44).

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Hence, for the same reasons as discussed above for D1, the subject-matter of claim 1 of the first and second auxiliary requests also lacks novelty over D2 (Article 54(1) and (2) EPC).

6. Third auxiliary request

6.1 Claim 1 - added subject-matter

Contrary to the opponent's argument, the parent application as filed discloses a vascular access port that is generally "structured for performing power injection", without any reference to a particular flow rate or injection pressure. This is already suggested in the last paragraph of the background section of the description, which states the technical problem addressed in the application (paragraph [0008]: "vascular access ports (...) structured for performing power injection may be advantageous"). In fact, the person skilled in the art understands from the application as a whole that the various flow rate or pressure values and ranges disclosed merely correspond to particular injection parameters which all fall under "power injection" (see for example paragraph [0135]: "identify the access port as suitable for power injection or may identify a maximum flow rate or pressure that may be safely accommodated by the access port"; see also point 1. above). The fact that claim 1 does not refer specifically to either flow rate or pressure is therefore not in breach of Article 76(1) EPC.

Moreover, the fact that the radiopaque material forms a pattern "for identifying the vascular access port as being structured for performing power injection" is disclosed in paragraph [0138] in combination with paragraph [0135].

Furthermore, the mortise-and-tenon mechanism to which the opponent referred is described in the parent application as filed merely as one of several example mechanisms for retaining the septum in the housing of the access port (paragraph [0088], first three sentences). This mechanism is not inextricably linked to the other features defined in claim 1. The same conclusion applies to a septum including a gel region (paragraph [0018]). Hence, omitting these features in claim 1 does not result in subject-matter extending beyond the content of the parent application as filed.

It follows that the requirements of Article 76(1) EPC are met, contrary to the opponent's view. Since the description of the subject application as filed contains verbatim the description of the parent application as filed, the requirements of Article 123(2) EPC are also met.

6.2 Claim 1 - extension of scope of protection; request for referral to the Enlarged Board of Appeal

6.2.1 Extension of scope of protection

Under Article 69 EPC and the Protocol on its interpretation, the extent of the protection conferred by a European patent is determined by the claims,

which must be interpreted with the help of the description and the drawings. In the case in hand, it is disputed whether claim 1 of the third auxiliary request confers a broader scope of protection than claim 1 as granted. Neither party has relied on the description or the drawings.

The scope of protection conferred by a patent claim depends in particular on its category and the technical features it includes (G 2/88, Reasons 3.3). Claim 1 of the third auxiliary request includes all the features of claim 1 as granted, as well as several additional technical features. Both claims are product claims. It follows that claim 1 of the third auxiliary request has a narrower scope of protection than claim 1 as granted (see G 2/88, Reasons 4.1).

In this context, it does not matter that claim 1 as granted was directed to a septum whereas claim 1 of the third auxiliary request is directed to a vascular access port comprising the septum according to claim 1 as granted.

The opponent argued that it would not be allowable under Article 123(3) EPC to claim a physical entity which is different from the physical entity claimed in the patent as granted. In the context of the case in hand, the opponent's arguments also amount to saying that, in a product claim, the entity claimed is defined by the first technical feature of the claim.

Under Article 123(3) EPC, however, what matters is not what the first technical feature in a claim is, but rather which technical features the claims include in their totality. In other words, the scope of protection is not necessarily different depending on whether a septum in combination with a vascular access port is claimed or a vascular access port comprising a septum. In any case, the scope of protection of claim 1 as granted, which is directed to a septum, is broader than that of claim 1 of the third auxiliary request, which is directed to a vascular access port comprising the septum according to claim 1 as granted.

The opponent's arguments relating to possible differences under German patent law with regard to contributory infringement do not change the above assessment. There is a difference between the "extent of the protection conferred" by a patent under Article 69 EPC and the "rights conferred" by a patent under Article 64 EPC. The latter depend on the rights conferred by a national patent in the relevant contracting state and do not need to be considered for the purposes of Article 123(3) EPC. Accordingly, the national laws of contracting states in relation to infringement are not to be taken into account under Article 123(3) EPC either (G 2/88, Reasons 3.3).

The board is also not convinced by the opponent's argument that dependent claim 2 as granted, which was already directed to a septum in an access port, comprised additional technical features in comparison with claim 1 of the third auxiliary request. Under Article 123(3) EPC, the patent proprietor does not have to amend claim 1 as granted so as to include all the technical features of dependent claim 2 as granted. What matters under Article 123(3) EPC is merely whether an amendment results in an extension of the scope of protection, taking into account the totality of the claims. As stated above, claim 1 of the third auxiliary request has a narrower scope of protection than claim 1 as granted.

6.2.2 Request for referral to the Enlarged Board of Appeal

In view of the above, the questions proposed by the opponent for referral to the Enlarged Board of Appeal can be answered without doubt by reference to the law as interpreted by the Enlarged Board of Appeal.

Moreover, the facts considered in decisions T 352/04 and T 867/05, referred to by the opponent, are different from those in the case at issue. In this regard, the board agrees with the reasoning given in decision T 547/08, Reasons 3.2.

The opponent further alleges that decision T 1898/07, Reasons 19, supports the view that assessing compliance with Article 123(3) EPC includes a test that takes account of national infringement laws and therefore, in the case in hand, also the rules on contributory infringement under German patent law. Regardless of whether this interpretation of T 1898/07 is correct, the board disagrees with this conclusion, in view of the Enlarged Board's different statement on this matter in G 2/88, Reasons 3.3.

For these reasons, the board refuses the opponent's request for referral to the Enlarged Board of Appeal.

6.3 Claim 1 - clarity

The proprietor filed the third auxiliary request with its statement of grounds of appeal. The opponent did not challenge the clarity of the claims of this request in its reply to the statement of grounds of appeal, nor did the board raise this issue in its preliminary opinion. It was not until after the notification of the summons to oral proceedings that the opponent raised a clarity objection against claim 1.

In the absence of exceptional circumstances which could justify raising the clarity objection at such a late stage of the appeal proceedings, the board decided not to take this objection into account pursuant to Article 13(2) RPBA 2020.

6.4 Claim 1 - novelty over D1 and D2

6.4.1 Contrary to the opponent's view, the expression "power injection" has a clear technical meaning in the art. This is not only derivable from the description of the contested patent (paragraphs [0002]-[0004]; see also point 1. above), but also clearly evidenced by HE5 (page 297, left-hand column, paragraph above Table 16-2; page 299, Table 16-3) and D13 (page 337, right-hand column, second and third paragraphs), both of which distinguish between power injection and manual injection, as argued by the opponent itself.

In particular, the fact that a vascular access port is structured for performing power injection does not mean that the access port should be merely suitable for a motorised injection process, at an arbitrary low flow rate and injection pressure, as alleged by the opponent. The feature of a vascular access port "structured for performing power injection" limits the subject-matter of claim 1 as it implies that the port is capable of withstanding high injection pressures which, when fluid is injected into the access port, lead to significant, potentially damaging internal port pressures developing within the reservoir of the port (D13, page 337, right-hand column, third paragraph and point 1. above).

The question to be answered is thus whether the access ports in D1 and D2 are suitable for withstanding such high internal port pressures.

6.4.2 The person skilled in the art learns from D13 that for typical power injection set-ups with a flow rate of 1 or 2 ml/s, the pressure measured at the port-catheter connection - which is even smaller than the internal port pressure itself, as illustrated in Figure 7 of the contested patent - ranges from about 8 psi to above 40 psi (page 339, Table 1). Given its dependence on flow rate and viscosity (for a laminar flow, this dependence is linear according to the Poiseuille's law; see D13, page 337, right-hand column, section "Methods"), the board notes that this pressure will increase to far over 100 psi for higher flow rates or thicker contrast media, as also argued by the proprietor. This is additionally derivable from the description of the contested patent itself, which describes internal port pressures ranging from 37 to 185 psi (paragraph [0075]), with flow rates potentially as high as 5 ml/s (paragraph [0076]).

6.4.3 D1 and D2 are silent about injecting contrast media through the septum. The devices disclosed in these documents are designed to control the flow of a body fluid from one part of the body to another (typically cerebrospinal fluid from the brain to the heart) by means of a membrane valve (claim 1 of D1). Hence, these devices are designed to withstand low pressures of the order of magnitude of the body fluid pressures in question. Even when a fluid such as a drug is injected through the septum, the corresponding internal pressure developing within the port must remain within the same order of magnitude, particularly so as not to damage the membrane of the valve (especially when this membrane is thin enough to permit a "relatively low pressure differential" between the inlet and outlet; D1, column 5, lines 28-31). The opponent's argument that the injection pressure must be sufficiently high to infuse fluid into the heart cavity is not convincing. In order to reach the heart atrium, where the infused fluid is delivered together with the drained body fluid (D1, column 3, lines 40-43), the infused liquid only needs to develop a pressure in the same range as that of the cerebrospinal fluid to be drained.

Further support for the conclusion that the devices in D1 and D2 are designed for low-pressure applications is that the resilient dome 34 must be sufficiently resilient to be deformable by the mere pressure of a finger, as put forward by the proprietor (e.g. D1, column 5, lines 6-8).

Therefore, even if, as argued by the opponent, D1 and D2 are not limited to devices for draining cerebrospinal fluid from the brain, the board shares the proprietor's view that the typical internal port pressures for which the devices in D1 and D2 are designed can be reasonably considered to be at most a few psi. Consequently, they are in any case significantly lower - by at least one order of magnitude - than the internal port pressures to be withstood by vascular access ports structured for performing power injection.

The picture is similar in terms of flow rate. As argued by the proprietor, the devices in D1 and D2 are dimensioned for the slow drainage of a body fluid (typically cerebrospinal fluid from the brain), with flow rates remaining well below those used with power injection.

For these reasons, the board concludes that D1 and D2 do not disclose vascular access ports "structured for performing power injection".

6.4.4 It follows from this conclusion that the radiopaque dot codes 70, 56 disclosed in D1 and D2 cannot be "for identifying the access port as being structured for power injection".

Therefore, the feature of claim 1 requiring that the radiopaque pattern is "for identifying the access port as being structured for power injection" is not disclosed in D1 and D2 either.

6.4.5 It follows that the subject-matter of claim 1 is novel over each of D1 and D2 (Article 54(1) and (2) EPC).

6.5 Claim 1 - novelty over D4

As argued by the proprietor, D4 does not contain any direct and unambiguous disclosure, whether explicitly or implicitly, of a vascular access port being "structured for performing power injection", in view of the interpretation of this expression established in point 6.4.1 above. Hence, the opponent's novelty objection fails for this reason alone.

What is more, the radiopaque locator ring 22 disclosed in D4 (corresponding to the radiopaque material as claimed) is not "included" in the septum 16 as asserted by the opponent, but rather consistently disclosed in D4 as a separate component distinct from the septum, intended to be placed above it (column 3, lines 51-53; column 4, lines 5-7; column 4, lines 22-24; claim 12) or formed with radiopaque paint or material painted on or deposited into holes provided on the port (column 4, lines 14-18).

It follows that the subject-matter of claim 1 is also novel over D4 (Article 54(1) and (2) EPC).

6.6 Claim 17 - novelty over D1, D2 and D4

As discussed with respect to claim 1 above, D1, D2 and D4 are not concerned with power injection and do not disclose, even implicitly, an access port "structured for performing power injection", i.e. "suitable for power injection".

Therefore, these documents cannot a fortiori disclose a "method of identifying an access port as being suitable for power injection" as defined in claim 17.

It follows that, at least for this reason, the subject-matter of claim 17 is novel over each of D1, D2 and D4 (Article 54(1) and (2) EPC).

6.7 Claims 1 and 17 - inventive step starting from D1 or D2 in combination with D13 or HE5

The opponent submitted that the subject-matter of claims 1 and 17 did not involve an inventive step in view of D1 or D2 in combination with D13 or HE5. These objections do not convince the board.

6.7.1 The opponent's line of reasoning is based inter alia on the assertion that the person skilled in the art starting from D1 or D2 would have sought to achieve uniform delivery of contrast medium to increase the quality of the CT imaging while decreasing the operator's radiation exposure. In the board's view, the very definition of this technical problem, which contains a pointer to the claimed solution, is based on hindsight since neither D1 nor D2 suggests using the disclosed access port to inject contrast medium in order to carry out CT imaging on a patient. The opponent's attack thus fails to convince at least for this reason.

6.7.2 What is more, in the board's view, the person skilled in the art would not have realistically contemplated using power injection with the devices in D1 and D2.

Contrary to the opponent's submission, power injection implies high pressures within the access port, which could damage it (points 6.4.1 and 6.4.2 above). The person skilled in the art would have learnt from D13 as a whole that even an access port marketed with a recommended safety pressure limit of 40 psi should not be simply used with power injection without first carrying out thorough safety investigations, including detailed experimental studies, to assess whether it is actually suitable for power injection without risk for the patient (page 337, right-hand column, third paragraph). D13 would therefore have discouraged the person skilled in the art from using power injection with the devices in D1 and D2, which are designed for internal port pressures of no more than a few psi (point 6.4.3 above), i.e. well below 40 psi.

HE5, which does not address injection into an access port, does not support a different conclusion.

Without knowledge of the invention claimed, the person skilled in the art would therefore have had no motivation to make the devices in D1 and D2 "structured for performing power injection".

6.7.3 For these reasons, the board concludes that the subject-matter of claims 1 and 17 involves an inventive step over D1 and D2 (Article 56 EPC).

6.8 Sufficiency of disclosure

In accordance with established case law, the person skilled in the art may use their common general knowledge to supplement the information contained in the patent (Case Law of the Boards of Appeal of the EPO, 9th edition, 2019, II.C.4.1).

In the board's view, the person skilled in the art would have no difficulty in selecting appropriate materials for the septum and for the radiopaque material or in joining the material to the septum to form a radiopaque pattern as claimed.

Therefore, the board concurs with the opposition division's conclusion (point 18 of the decision under appeal) that the invention claimed is disclosed in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art (Article 83 EPC), contrary to the opponent's argument.

6.9 The opponent had no further objections against the claims of the third auxiliary request or against the description adapted by incorporating the amended paragraph [0009] filed by the respondent during the oral proceedings before the board on 14 October 2021. The board had no objections either.

7. Proprietor's request for apportionment of costs

According to Article 104(1) EPC, each party to opposition proceedings should bear the costs it has incurred unless a different apportionment of costs is ordered for reasons of equity.

The interruption of the oral proceedings requested by the opponent to prepare questions to be referred to the Enlarged Board of Appeal was limited to 50 minutes. Even if these questions could have been prepared in advance of the oral proceedings, the opponent's behaviour in the case in hand does not constitute an abuse of rights.

For an abuse of rights to be acknowledged, the opponent would have had to have exercised its right to make a request for referral to the Enlarged Board of Appeal not in pursuit of a legitimate aim, such as to receive an answer to the proposed questions, but rather primarily to cause damage to the patent proprietor. The burden of proof in that regard is on the person claiming the abuse of rights (see J 14/19, Reasons 13.1).

In the case in hand, the patent proprietor did not provide any proof as to the opponent's possible intention to cause harm, nor is the board aware of any such indication. The mere fact that the request was not allowed by the board, or was possibly unlikely to be allowed, does not constitute any such indication.

The board further notes that the proprietor did not raise any objection against the opponent's request for interruption of the oral proceedings, nor did the proprietor object to the admittance of the actual request for referral to the Enlarged Board of Appeal.

The board therefore sees no reasons of equity which could justify diverging from the principle of Article 104(1) EPC whereby each party should bear the costs it has incurred.