T 482/16 - Last-minute additional searches during the oral proceedings to make up for the poor search carried out earlier
In the present case, the applicant was confronted with two new documents, D2 and D3, introduced by the Examining Division during the oral proceedings for the first time. The applicant's request for postponement of the oral proceedings in view of this introduction of D2 and D3 was denied. Upon filing amendments trying to take the disclosure of D2 and D3 into account, the applicant was confronted with two further new documents, D4 and D5, also introduced by the Examining Division during the oral proceedings. No time was given to the appellant to consider these new documents. Rather, the appellant's request for postponement was rejected and the application refused. The applicant appealed the refusal. In the appeal, the Board concluded that: "[Therefore,] the appellant was confronted with new objections based on new evidence during the oral proceedings. Although it is possible for an examining division to introduce new evidence even at a late stage of proceedings, in the present case the course of the examination proceedings suggests that the examining division tried to make up for the poor search carried out when the application was filed by performing last-minute additional searches, in an attempt to find documents more relevant than D1 for the claimed subject-matter", as the Board noted that "According to the impugned decision, these new documents had been found by carrying out an additional search on the day of the oral proceedings, just before their start. This means that the introduction of D2 and D3 was not motivated by the new claim requests filed by the appellant to overcome the lack-of-clarity objection raised during the oral proceedings". "The Board concludes that, by rejecting the appellant's request for postponement of the oral proceedings, the examining division did not provide the appellant with the appropriate opportunity to present its comments on the objection of lack of novelty over D3 in the light of D4 and D5. The appellant's right to be heard on the examining division's novelty objection has thus been violated by the examining division's refusal of its request for adjournment of the oral proceedings, contrary to the requirement of Article 113(1) EPC. This amounts to a procedural violation."