Tuesday, May 11, 2021 T 2255/15 - Can the Board of Appeal disregard third party observations that were only filed during the appeal proceedings?

In the present case, the appeals lodged by the opponent and the patent proprietor lie from the interlocutory decision of the opposition division that the European patent No 1 369 037 in amended form. Third party observations were submitted in an early stage of the appeal proceedings, as well as in later stages, objecting to novelty and to inventive step w.r.t. newly field documents (existing grounds, but new facts, arguments and evidence). The patent proprietor requested that the third-party observations, with all the documents and annexes referred to in the observations, not be admitted into the proceedings as they were late-filed. However, the RPBA seems to only impose constraints on late-file submissions by parties, as does Art. 114(2) EPC, and not by third parties. How did the Board handle these third party observations: were they admitted and, if so, to what extent?

Tuesday, May 12, 2020 T 487/16 - Can a document admitted by the opposition division and upon which the decision was based be excluded from appeal proceedings?

In the present case, an appeal was filed by the appellant (patent proprietor) against the decision of the opposition division revoking his patent due to lack of novelty  w.r.t. D1 and lack of inventive step w.r.t. D3 in combination with late-filed document D7. D7 was admitted by the Opposition Division as prima facie relevant (page 5 of the decision). Arguments of the proprietor before the Opposition Division, that D7 belongs to a remote technical field were not of any avail. In his grounds of appeal, the appellant submitted that "D7 was late filed before the opposition division which then erred in admitting the document despite its content relating to a remote technical field and not being of prima facie relevance to the claimed subject-matter. D7 should thus not have been admitted into the proceedings." Was the Board convinced? Did the Board allow D7 to be used? Did the Board agree with D7 being from an unrelated or remote technical field and did that have any effect on its admissibility or otherwise?