T 2101/14 – Not admissible if not promptly substantiated
The applicant filed an appeal
against a decision of the Examining Division refusing applicant’s European patent application. With the statements of the grounds of appeal, the applicant
forwarded a new set of claims not previously presented during examination. In a
preliminary assessment of the claims, the Board expressed its concerns about
the introduction of a new unsearched feature.
In order
to obviate the Board’s concerns, the applicant presented a further set of new
claims. Since this further set of new claims was based on a suggestion for an
allowable claim of the Examining Division, the applicant did not consider necessary to file substantiating
arguments in support of this new request. Only during oral
proceedings the applicant substantiated the patentability of the further set of new
claims.
For the Board, an unsubstantiated request becomes effective at the date
on which the request is substantiated (T 1732/10) and thus too late in the present case
because it would have inevitably required an adjournment of the oral
proceedings, which is excluded by Article 13(3) RPBA. Thereby the Board refused
to admit the further set of new claims into the proceedings even if the claims
were filed well before arrangement of the oral proceedings and dismissed the appeal.