T 1516/11 (COMPOSITE/UNIVERSIDADE FEDERAL DE MINAS GERAIS) of 25.6.2015

Summary of Facts and Submissions

I. The appeal lies from the decision of the Examining Division refusing European patent application No. 07 719 328.2 with the International publication Number WO-A-2007/134419.

II. The Examining Division held that the claims of the then pending request lacked clarity (Article 84 EPC) and contained matter that extended beyond the content of the application as filed (Article 123(2) EPC).

III. With the statement of grounds of appeal, the Appellant filed a new set of claims (sole request), whose independent claim 1 reads as follows:

"1. A composite comprising:

a. bioceramics selected from the group consisting of Ca5(PO4)2OH, CaCO3, CaSO4, CaSO2, Ca3(PO4)2, CaOSiO2(NO3)2, Ca10(PO4)6(OH)

b. biodegradable polymers selected from the group consisting of PLGA, PLA, PGA or combinations thereof, or a non-biodegradable polymer like PMMA,

c. cementing and/or carrier substances,

d. Antibiotics in concentration of 0.001% to 5% (w/w), and

e. Angiotensin (1-7) from 1 rhoM to 50 myM,

wherein the antibiotics and the angiotensin (1-7) are encapsulated in a polysaccharide and micro or nano-encapsulated in the biodegradable polymers."

IV. With a communication dated 3 February 2015 accompanying the summons for oral proceedings on 25 June 2015, the Board indicated inter alia that there was no support in the application as filed for the bioceramic being Ca5(PO4)2OH and, hence claim 1 contravened the requirement of Article 123(2) EPC.

V. On 24 June 2015, the Appellant advised the Registrar of the Board by telephone that it will not be represented at the oral proceeding scheduled on 25 June 2015.

VI. The Appellant requested in writing that the decision under appeal be set aside and that a patent be granted on the basis of claim 1 to 9 filed with the statement of the grounds of appeal dated 28 June 2011. He also requested that the case be remitted to the Examining Division for further prosecution.

VII. The oral proceedings before the Board took place on 25 June 2015 in the absence of the duly summoned Appellant. At the end of the oral proceeding, namely at 09:10, the decision of the Board was announced.

VIII. With a fax dated 24 June 2015, but received by the EPO on 25 June 2015 at 11:22 the Appellant declared that he withdrew its application.

Reasons for the Decision

1. The appeal is admissible.

2. Procedural matters

The Appellant's fax with the intended withdrawal of the application was received by the EPO after the announcement of the Board's decision to dismiss the appeal. Accordingly, the withdrawal has no effect on the present decision finally refusing the application, which took effect with its announcement.

3. Amendments (Article 123(2) EPC)

The Appellant was informed by the Board's communication accompanying the summons for oral proceedings of the objection under Article 123(2) EPC inter alia that the feature present in claim 1, that bioceramics are selected inter alia from Ca5(PO4)2OH, has no basis in the application as filed.

In fact, claim 1 has been amended by precising that the composite comprises bioceramics selected from inter alia Ca5(PO4)2OH. There is no support in the application as filed for this feature. Therefore, claim 1 has been amended such as it extends beyond the content of the application as filed, contrary to the requirement of Article 123(2) EPC.

Already, for this reason the sole request presented by the Appellant must be refused.

Order

For these reasons it is decided that:

The appeal is dismissed.