Following EPO presentation of the minutes of the Oral Proceedings earlier today, We have been in contact with BioPorto.

According to the information BioPorto have received – a wrritten explanation on the reasoning of the OD is under way. EPO have informed BioPorto that the explanatory note is to be received sometime next week.

BioPorto has promised to send out information about the reasoning to the interested parties (shareholders and market)… I expect that this will – at the very latest be a part of the Quarterly report due on the 25th.

Upon receiving documentation from EPO about the verdict – BioPorto have 4 months to make an appeal to The Technical Boards of Appeal (TBA). I expect that those 4 months will be used to the max… According to some then Abbott/Alere et al. have the right to counter BioPorto’s writ – however when I search the web – it looks as if that is not the case. The opponents are not “the old opponents” but the OD. quote:  For instance, when “the order of the decision of the opposition division is the revocation of the patent, an opponent who requested revocation of the patent in its entirety is not “adversely affected by” said decision… irrespective of the reasons given in the decision.”

At the TBA Bioporto will face an entirely different examination board than the one at the Opposition Division. :

The Technical Boards of Appeals  deals with appeals filed in relation to decisions reached by the first instance in the patent grant procedure, such as in this case OD (Opposition Division).

The Technical Board of Appeals is manned by  two senior members with the relevant technical expertise as well as one juridical member.

The Technical Board of Appeals  rule on questions relating to the previous granting of and opposition to Patents. The Board  can issue an order that an opposed patent be maintained in its entirety or in part only, or that it is ultimately revoked.

please also see:

About Stengaard

BioPorto investor from way back when... I've invested in BioPorto ever since they made their debut on the danish stock exchange, it been a looooong journey with many obstacles. But well worth it all if Bioporto maintains their patent after the proceedings in 2014, and enters into agreements with Global Distributors in 2012 and 2013 If not, then it'll take another xx.years 🙂


2 Responses to EPO, Oral Proceedings / NGAL cutoff-patent (II)

  1. stengaard says:

    and a contradicionary opinion regarding the proceedings are found here:
    Can the decision be appealed?
    The written decision can be appealed by the opponent if the patent has been maintained or by the proprietor if the patent has been revoked. If the patent has been maintained in an amended form, both proprietor and opponent may be able to appeal. A notice of appeal must be filed within two months of notification of the written decision and the appeal fee paid. A reasoned statement setting out the grounds of appeal must be filed within four months of notification of the written decision. All the parties to the opposition are automatically party to the appeal and the appeal procedure is generally similar to the procedure before the Opposition Division. Oral Proceedings before the Appeal Board always take place at the EPO in Munich. The Appeal Board is made up of different, more experienced Examiners than the Opposition Division, who can decide to affirm or overturn the decision of the Opposition Division. If the Appeal Board overturns a decision to revoke the patent, the opposition may be remitted to the Opposition Division for examination of any remaining grounds of opposition. If the Appeal Board revokes the patent, there is no further possibility for appeal. However, if the Appeal Board maintains the patent as grant- ed or in amended form, validity may still be challenged in each designated state separately via the local courts.
    How long does an opposition last?
    Opposition proceedings at the EPO normally take about 2-3 years, with any subsequent appeal taking a further 2-3 years.
    How can we help?
    We have extensive experience of acting for both opponents and patent proprietors in opposition proceedings at the European Patent Office in all technical fields. If you have any questions, or would like advice on a specific case, please contact us at Dehns using the details below.

  2. stengaard says:

    This found on the Web:

    What happens to a European Patent when an opposition is pending
    The European Patent remains in force in each country it has been validated. If the proprietor attempts to enforce the patent in a country's national court, the court will decide whether or not to wait for the outcome of the opposition.

    Any party to the opposition that is adversely affected by the decision can file an appeal. A notice of appeal must be filed within two months of the date of the written decision. A grounds of appeal must be filed within four months of the date of the written decision, setting out the basis for the appeal.

    In theory the appeal is a review of the decision, but in practice it often results in a complete rehearing of the case. The procedure is very similar to that of the opposition procedure described above, and takes about the same time to complete. The costs involved in an appeal are typically similar to those of the opposition. As with the opposition procedure, each party usually bears its own costs, except when one of the parties has acted in an inequitable manner.

    The appeal is terminated by a decision, which may be to revoke the patent or to uphold the patent as granted or as amended. In some cases, where the Board of Appeal does not uphold the Opposition Division's decision and there remain issues yet to be considered by the Opposition Division, the Board of Appeal can remit the case back to the Opposition Division for further consideration.

    Can you appeal the Board of Appeal's decision?
    Currently there is no right to appeal the decision of the Board of Appeal. If the appeal decision is to revoke the patent, no further avenues of appeal are available to the proprietor. However, if the appeal decision is to maintain the patent either in amended or in its granted form, then the opponent can file revocation actions in each of the European countries covered by the patent.
    There is an Enlarged Board of Appeal whose current purpose is to rule on important points of law and to ensure a uniform application of the law, where for example two Boards of Appeal have issued conflicting decisions.

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