tag:blogger.com,1999:blog-8990057754240336385.post7748592723932165667..comments2024-02-27T09:18:36.160+01:00Comments on DeltaPatents Case Law blog: T 169/12 - late lines of attackDeltaPatentshttp://www.blogger.com/profile/07830354704918972593noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-8990057754240336385.post-74541220611969183442015-09-16T10:09:45.978+02:002015-09-16T10:09:45.978+02:00If an opponent would be allowed to behave in appea...If an opponent would be allowed to behave in appeal like the present one, this would open the door to abuse. It would suffice to quote the document to later let it come up, as such or in combination with another document of the same kind, as a kind of submarine or torpedo attack.<br /><br />While the Boards have their rules of procedure, i.e. Art 12(4) RPBA to counter such behaviour, the OD are not without a possibility to act against such behaviour in first instance. <br /><br />What matters here is the legal and factual framework of the opposition as defined in R 76(2, c). At the end of the opposition period the proprietor and the OD should be aware of all the attacks faced by the patent. It is neither the role nor the duty of the proprietor and the OD to guess which attacks could possibly be based on the documents quoted but not used for attacks. An opposition statement simply claiming on the basis of a list of documents that the patent should be revoked is not admissible.<br /><br />The opponent can still attempt to file further attacks, but they have then to be submitted to an admissibility check, and should only be admitted if prima facie relevant. <br /><br />By the way, there is also clear case law according to which documents cited on the SR, used in examination or cited in the patent are not automatically part of the opposition procedure, see for instance T 291/89, T 652/99 and T 111/04. <br /><br />The only document cited in the patent which automatically part of the opposition proceedings is the document acknowledged as closest prior art, cf. T 536/88, T 541/98, T 454/02 or T 86/03. The present decision reiterates this point in § 3.4.3 of the reasons.<br /><br />The decision is also interesting in that it reiterates that simple references to earlier submissions in opposition do not suffice in providing the legal and factual reasons (i.e. the substantiated arguments) for setting aside the impugned decision. See § 2.2 of the reasons.Raoulnoreply@blogger.com