Boards of Appeal: EPO must reopen PET bottle patent case

The Boards of Appeal rarely express such clear criticism of the Opposition Division’s work as in the case concerning EP 3 678 838. The patent, belonging to French company Sidel Group, protects a manufacturing technique for preform transport devices used in PET bottle production.

German firm Krones AG, which competes with Sidel in packaging solutions for the beverage industry — particularly PET bottle production — had opposed the grant of EP 838. Krones lost this opposition in April 2024.

However, the Opposition Division must now reopen proceedings. The Boards of Appeal upheld Krones’ appeal, set aside the judgment and referred it back to the EPO (case ID: T 0843/24 3.2.05).

The BoA judges wrote that “(…) the Opposition Division did not take a position on many aspects raised by the appellant in the opposition proceedings. Although it partially reproduced the positions of the parties, it did not take a decision on the various relevant issues. Moreover, the decision repeatedly dealt with the independent procedural claim and the independent device claim together without addressing the obvious differences between them.”

Money back and start again

“These shortcomings are such that the reasons for the Opposition Division’s conclusions are not comprehensible, which casts doubt on the legality of the decision. The Board therefore agrees with the appellant that the decision of the Opposition Division is not sufficiently reasoned, which is contrary to the requirements of Rule 111(2) EPC.”

The judges found both the reasoning on lack of practicability and the aspects of novelty and inventive step to be insufficient. Their judgment thus sets a minimum standard for future decision reasoning. The EPO has since reimbursed Krones’ appeal fee.

According to experts, such decisions where the Boards of Appeal criticise an Opposition Division’s ruling are uncommon in EPO practice. It remains unclear whether the same Opposition division will reopen proceedings or if a different division will take over. The grant of EP 838 is now also under scrutiny again, as the Boards of Appeal did not comment on this aspect. The case is therefore wide open.

Two fierce competitors

Sidel and Krones frequently encounter each other in EPO proceedings. Sidel works with various French patent attorney firms on EPO filings. Currently, Plasseraud and Cabinet Philippe Kohn handle most of its applications. However, for the EP 838 proceedings, the company relied on its in-house patent department.

Krones filed its opposition to EP 838 through Regensburg firm Hanke Bittner & Partner. Patent attorneys Bernhard Bittner and Melanie Pfeuffer also handled the appeal proceedings.