8th jun, 2008

A bunch of interesting EPO BoA decisions

My last raid of the EPO Board of Appeal database revealed several interesting decisions.
T 859/07
Method and apparatus for multi player bet auxiliary game
This decision involves a casino game which has been automated. The conclusion of the BoA is the most unremarkable: the invention is not patentable because of lack of inventive step. The remarkable part is the very good explanation of what inventive step, technical contrinbution and further technical effect means.
They say “The Board is of the firm belief, that it cannot have been the legislator’s purpose and intent on the one hand to exclude from patent protection such subject matter, while on the other hand awarding protection to a technical implementation thereof, where the only identifiable contribution of the claimed technical implementation to the state of the art is the excluded subject-matter itself.” And a good quote on further technical effect “it needs to be stressed that the “further” technical effect can not be the same one which is inherent in the excluded subject-matter itself.

T 0257/07
Virtual IPR system in electronic game environment
This decision relates to re-instatements of rights (one of my favourite subjects). The case is decided aorund the question whether the appellant has fulfilled his instruction obligations to his employees. The BoA finds that both the lacking instructions and missing failsafe in the system was enough to deny re-instatements. Furthermore they state that “the request for restitutio initially presented within the period stipulated by Article 122(2) EPC failed to show that all due care had been taken. This omission cannot be subsequently remedied by the addition of further facts, as case law would only allow the appellant to “submit further evidence which clarifies the facts which were set out in the application for re-establishment”. This mean that you get only one shot in your explanation of how you fulfilled the requirement of all due care. A very important point when drafting your request for re-instatement – you have one chance to show what points you will present your case on.
T 1209/05
Mixed esters of pentaerythritol for refrigeration base oils
This decision relates among other things to non-patent prior art. The opponents show evidence of prior use of the invention by submitting invoices and test results from 3rd party. This show that it could be a good thing to hang on to your documentation for more than 5-6 years – the documentation in this case was 10 – 14 years old.

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