UPC CFI 499/2024

Mushroom strain EP 1 993 350 B2 is not excluded from patentability under Art. 53(b) EPC

Note: Court confirmed in the default decision that the hybrid Agaricus bisporus strain is not an essentially biological process and is not excluded from patent protection.

Defendant's representative failed to exercise all due care to avoid missing the SoD filing deadline despite having seven weeks' access and prior familiarity with the case

Note: Court found representative should have used the CMS team function to ensure another representative could submit on his behalf in case of illness; failure to do so was not due care.

Defendant had been warned a decision by default would be taken and a R.356 set-aside application is barred where the default was already the subject of a prior R.320 assessment

Note: Court held the R.320-Order constituted sufficient notice that a further decision by default would be final, barring the R.356 set-aside application.

Representative's illness prevented timely filing of SoD and re-establishment of rights under R. 320 should be granted

Reason: Representative had seven weeks of access to the file, familiarity from PM and revocation proceedings, and submitted a brief to the EPO on the very day he claimed illness prevented SoD filing; he also failed to use the CMS team function to ensure backup coverage.

Default decision should be set aside under R. 356 RoP

Reason: R. 320-Order had put defendant on notice that a default decision would follow; the same grounds for default were already assessed and rejected in the R. 320 proceedings; no new reasons were offered in the R. 356 application.