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The appellant argued at first instance that circulation pumps are typically implemented as centrifugal pumps. On appeal, additional textbook excerpts were submitted to substantiate this point. The Court held this as concretization of already conclusive submissions. In addition, this submission was not contested by the respondent, beyond mere arguing late-filing. Uncontested submissions generally cannot be rejected as late-filed.
within Privacy, Transport, Food, Drugs, Healthcare and Life Sciences topic(s)
1. Key takeaways
Further substantiation of already conclusive first-instance submissions is not “new” on appeal
The appellant argued at first instance that circulation pumps are typically implemented as centrifugal pumps. On appeal, additional textbook excerpts were submitted to substantiate this point. The Court held this as concretization of already conclusive submissions. In addition, this submission was not contested by the respondent, beyond mere arguing late-filing. Uncontested submissions generally cannot be rejected as late-filed.
Prior art arguments are “new” on appeal if the specific information was never argued at first instance
Even where a prior art document was already filed at first instance, appeal submissions are new if the specific information was not previously argued at first instance.
Identical terms in a claim may have different meanings if the function requires it
The divergent understanding of the term “switching” in different features results from the two features serving different functions, as confirmed by the description.
The language of proceedings is authoritative for claim construction
The Court held that the claims in the language of proceedings (German) were authoritative. The translation in the patent (English) was irrelevant where it supported a different reading.
No legal interest to examine validity of claims that are dependent on claims found patentable
Where a dependent claim is linked to a claim found patentable, the appellant lacks legal interest in examination of the validity of such dependent claim.
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