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Date of decision
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29 April 2004
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Case number
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T 0934/02
- 3.2.1
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Application number
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95304228.0
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Title of the application
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Friction lining materials
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Applicant name
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BorgWarner Inc.
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Opponent name
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Verband der Reibbelagindustrie e.V
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Keywords
Appeal of the patent proprietor based on a new request for
amendment (admissible)
Main request rejected in the opposition division decision-
formulation attempt, not partial surrender
Inventive step (yes)
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Catchwords:
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I. An appeal of the patent proprietor is to be considered
sufficiently substantiated within the meaning of Article 108,
third sentence EPC by filing amended claims which deprive the
contested decision of its basis, even though it does not state
any specific reasons why the contested decision is wrong. It is
therefore not necessary and would also be pointless for the
purposes of adequately substantiating an appeal, to file grounds
in support of a version of a claim that the appellant (patent
proprietor) no longer defends in the appeal proceedings. (see
point 2 of the reasons).
II. Where a patent proprietor appeals against an interlocutory
decision, maintaining a patent in amended form in accordance
with an auxiliary request the main request rejected by the
opposition division is to be considered as a formulation attempt
which does not prevent the patent proprietor from submitting in
the appeal proceedings a new main request having a claim 1
broader in scope than that of the rejected main request but
narrower than that of the granted version (see point 3 of the
reasons).
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