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In order to safeguard the right to broaden the scope of the claims, it is advisable for Proprietors to appeal decisions of Opposition Divisions which maintain their patents in an amended form.
According to the Canadian Intellectual Property Office (CIPO) patents may only be granted for physical embodiments of an idea, or a process that results in something that is tangible or can be sold.
According to the Technical Board of Appeal, exceptions to this principle are a matter of equity in order to protect a non-appealing Proprietor against procedural discrimination in circumstances where the prohibition of reformatio in peius would impair the legitimate defence of its patent.
Whether and to what extent an exception may be granted should be decided on a case-by-case basis in view of this overriding objective.
In this case, the admittance of the late-filed prior art document into the proceedings during the first appeal altered the factual and legal basis upon which the limiting amendment was made by the Proprietor.
The Proprietor was permitted to undo this amendment in order to restore priority.