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You are here: BAILII >> Databases >> United Kingdom Intellectual Property Office Decisions >> Waldo Belmonte Zbinden (Patent) [2001] UKIntelP o26001 (13 June 2001) URL: http://www.bailii.org/uk/cases/UKIntelP/2001/o26001.html Cite as: [2001] UKIntelP o26001 |
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For the whole decision click here: o26001
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application, from the same applicant and with the same content, that fell in the section 2(3) field but had been withdrawn.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.