Patent decision

BL number

O/260/01

Concerning rights in

GB2324340

Hearing Officer

Mr H J Edwards

Decision date

13 June 2001

Person(s) or Company(s) involved

Waldo Belmonte Zbinden

Keywords

None

Related Decisions

None

Summary

The application was completely anticipated by a previous application, from the same applicant and with the same content, that fell in the section 2(3) field but had been withdrawn. The date of withdrawal of the earlier application was a matter of days before its date of publication under section 16 and hence too late to prevent publication, but the agent argued that its withdrawal before publication meant that it should not be considered to be a published application in the terms of section 2(3). This was the view taken by the European Patent Office in their Guidelines, based on a decision of a Legal Board of Appeal, which should be compelling on the examiner. The examiner argued, and the hearing officer confirmed, that sections 2(3) and 16 taken together did not admit of any such derogation, and that the view of the Board of Appeal was not compelling because it was in effect an obiter dictum. The application in suit was thus completely anticipated by the presence of the earlier application in the section 2(3) field, and was refused.