Friday, October 11, 2019 T 124/16 - New argument based on admitted documents inadmissible in appeal OP

New arguments are rejected

This is another case about late documents or arguments. In the previous opposition proceedings, documents E12 and E14 were both filed by the opponent after the 9 month period. Although document E12 was admitted into the proceedings, document E14 was not. 

The opponent filed an appeal against the first instance decision, formulating inventive step objections based on both E12 and E14. When at the appeal oral proceedings document E14 was also not admitted, the opponent tried to use document E12 to formulate new inventive step objections. 

Although both the document E12 and inventive step arguments based on E12 were already in the procedure, the board nevertheless found that these new objections could not be regarded as a further development of the opponents case. As they were not prima facie relevant either, these objections were not admitted into the case. 

The decision is in German. A machine translation of the relevant part is provided, followed by the original. 

Tuesday, April 30, 2019 T 180/14 - Do not miss the opportunity to correct the error!

In this opposition appeal, the appellant (priopretor) filed statement of grounds of appeal including a new main request, which was indicated to include claims 1-22 of the 2nd auxiliary request filed during the oral proceedings before the Opposition division, and several auxiliary requests. Claim 1 of the new main request did not however correspond to claim 1 according to that second auxiliary request filed during the oral proceedings before the opposition division - at least two significant differences were identified.  In the letter of reply to the statement of grounds of appeal, filed by the opponent (respondent) in 2014, the discrepancy between what was said in the statement of grounds and in the submitted main request, was identified in detail. The appellant did not at that stage react to the respondent's reference to this identified discrepancy between the written statement and the content of the annexed main request. In a communication under Article 15(1) RPBA the board drew the appellant's attention to the corresponding discrepancy already identified by the respondent. It was inter alia noted by the board that the subject-matter of claim 1 of the main request and the first, third and fourth auxiliary requests was provisionally considered to not fulfil the requirements of Article 123(2) EPC. With letter of 15 February 2019, i.e. approximately one month prior to the oral proceedings scheduled before the board, the appellant, in response to the board's communication, filed a new main request as well as new first to fifth auxiliary requests. Claim 1 of the new main request is identical to claim 1 of the second auxiliary request as filed during the oral proceedings before the opposition division. The new main request was presented as a request for correction of obvious errors of what was submitted as new main request wit the statement of grounds in 2014. Did the Board accept the correction? Did the Board admit and allow at least one of the other requests?

Tuesday, March 19, 2019 T 47/18 - Admission of new objections which were not raised in the statement of grounds of appeal

The current Rules of Procedure of the Boards of Appeal, and in particular Art. 12 and 13 thereof, have been applied more and more strictly over the last few years. We cited some of those decisions every once in a while, and this is another of those decisions. With the new Rules of Procedure, expected to enter into force early 2020 (see here; and for the user consultation documents here and here), it will get even more strict. In the opposition case below, the opponent's statement of grounds of appeal contained neither an objection of lack of clarity of the (amended) claims under Art. 84 EPC nor an objection under Article 123(2) EPC. Rather, it contained only submissions with respect to inventive step. It was only after the parties had been summoned to oral proceedings that the opponent raised such objections.  According to the established case law of the boards of appeal, new objections which were not raised in the statement of grounds of appeal, respectively in the reply to the grounds of appeal, are considered an amendment to a party's case.  Admission of such objections is at the discretion of the board pursuant to Article 13(1) and/or 13(3) RPBA. The Board discussed in detail why, in this case, the objections were not admitted into the proceedings. Together with the current state of the proceedings and the need for procedural economy, an important factor was that the appellant could have raised the objections in question at several instances in the first instance proceedings before the opposition division.

Thursday, September 20, 2018 T 1914/12 - Does the Board have discretion as to the admissibility of late arguments based on facts already in the proceedings?

A decision in French, but well worth reading (and well-readable, too). It concerns the question whether the Boards of Appeal, based on Articles 12(2) and 13(1) of the Rules of Procedure of the Boards of Appeal (RPBA), have the discretion not to admit arguments submitted late in the proceedings - when the facts (in this case, a prior art document) underlying these arguments have been filed in time. It particularly deals with the legal meaning of the terms "facts" and "arguments", and how "facts, evidence or requests" (Art. 12(4) RPBA) and "amendments (to a party's case)" (Art. 13 RPBA) relate to Art. 114(2) EPC, stipulating that the European Patent Office may disregard "facts or evidence" (but not arguments?) not filed in time.

The present appeal lies from the decision of the Opposition Division to revoke European Patent EP1968779 on the grounds of lack of novelty and inventive step in view of, among others, prior art document D51. Briefly, the patent is concerned with a method for bonding a strip of a flexible sheet to a rigid support involving a step of pressing and heating a polymerizable adhesive applied between the support and the strip.

In its grounds of appeal, the proprietor provided several arguments as to why the subject matter of claim 1 distinguishes itself from the disclosure of D51. In a subsequent written submission - filed after transfer of the patent from the original proprietor to the original opponent - the new proprietor argued that, in addition to the distinguishing features discussed previously, D51 differs from claim 1 by disclosing a thermoplastic rather than a polymerizable adhesive (the latter point having merely been noted in the grounds, but not elaborated on).

In its preliminary opinion preceding Oral Proceedings, the Board expressed its intention not to accept the late argument that the nature of the adhesive used was an additional distinguishing feature.

During Oral Proceedings, the proprietor submitted that the assessment of a late argument must be applied according to a more flexible test than facts, evidence or requests, according to the RPBA interpreted in the light of its travaux préparatoires, in which the explicit inclusion of the term "arguments" had been debated. The proprietor further held that the belated argument is a pure argument concerning the underlying technical reality, namely the nature of the adhesive used. In this case, it is not the facts of the case that have changed, but the position of the parties on the interpretation of a document. In regard of Art. 114 EPC, the expression "in due time" must be interpreted in respect of the right of the parties to a fair trial and the duty of the Board to judge whether a fact corresponds to the technical reality.

In its reasons, the Board concluded that indeed a "fact" can be understood as a factual (or allegedly such) element or a circumstance on which a party bases its claims, whereas an "argument" would mean a proposition that a party bases on one or more facts and that supports the plea ["moyen" in the decision] which the party debates.

The Board further noted that in the "Proposal to amend the Rules of Procedure of the Boards of Appeal (RPBA)" of 2002, leading to the current version of the RPBA, "arguments" had initially been included in the definition of "amendments to a party's case". According to the Board, the deletion of the words "arguments" from the final (current) version seems to express the intention of the Praesidium, after consultation with the Patent Law Committee, to exclude arguments from the discretionary power conferred to the Boards of Appeal.

The Board cited T 1794/12 of 16 January 2018, which relied on point 3.1 of the article by B. Günzel, "The treatment of late submissions in proceedings before the boards of appeal of the European Patent Office" ( OJ EPO, Special Edition 2/2007, page 30):

For one thing, submissions can only be rejected on the grounds of being late if the decision-making body would not have been required to examine them and take them into consideration of its own motion. It is incumbent on every decision-maker and thus also on the boards of appeal to weigh up all the relevant legal and technical arguments in making their decision. Such arguments must therefore, at least when they involve the facts of the case and not new grounds for opposition, be taken into account at all stages of the proceedings, including the appeal stage, and cannot be rejected on the grounds of being late.

As regards previous Board decisions, the present Board is not persuaded by the reasoning behind T 1069/08 and T 1621/09 - followed by many Boards - which rely exclusively on the application of Article 13(1) RPBA from the formulation of Article 12(2) RPBA to recognize the discretion of Boards in (not) admitting late submissions. According to this Board, the interpretation of those decisions ignores the fact that Article 114(2) EPC does not justify such discretion, as previous case law has repeatedly stated. According to the Board, the EPC, and in particular its Article 114 - at least in its English version - raises a difference in the treatment of facts and arguments. In particular, Article 114(2) EPC provides for a discretionary power with regard to the facts invoked belatedly, and not for late arguments based on facts already in the proceedings. Even when drafting the RPBA, the legislator seems to have intended to maintain this distinction, as is apparent from the preparatory work on Article 13 RPBA. According to this board, the RPBA, also in view of Art. 23 thereof, although it can specify and interpret the provisions of the EPC, it cannot confer on the Boards of appeal powers which the EPC does not give them.

Thus, departing from T 1621/09, the Board found that the Boards of Appeal do not have a discretion as to the (non)admissibility of late arguments based on facts already in the proceedings.

Consequently, the proprietor's assertion concerning the nature of the adhesive used, first presented in its letter of 15 October 2015, constitutes a new argument in support of the plea which it defends, namely: that the subject matter of claim 1 is novel compared to document D51. Taking into account of this argument necessarily leads to the consideration of the applicant's argumentation concerning the inventive step of the subject-matter of claim 1. The Board comes to the conclusion that it has no discretion as to the (non)admission of these arguments. It follows that the additional difference must be taken into consideration.

With this new distinctive feature, a new line of argument has been submitted for consideration of inventive step. In view of the fact that this distinctive new characteristic may have an influence on the choice of the closest prior art, a referral of the case in the first instance is considered justified by the Board.

Friday, August 03, 2018 T 2145/13 - 2nd medical use (too) broadly claimed?

In this opposition appeal, the Opposition Division (OD) previously upheld the patent in amended form. Claim 1 as upheld by the OD reads as follows (this claim also being maintained by the patent proprietor as part of the main request during the subsequent appeal proceedings):

"1. An anti-NGF antibody for use in the treatment of post-surgical pain".

Several prior art documents, which were already introduced during the opposition proceedings, described the use of anti-NGF antibodies for use in the treatment of neuropathic pain.

The appeal proceedings focuses on the claim construction of the term "post-surgical pain" and whether this term has been interpreted too narrowly by the OD by considering it to exclude neuropathic pain. In other words, is the use of an anti-NGF antibody for the treatment of post-surgical pain indeed novel in view of its known use for the treatment of neuropathic pain?

Of further interest is that during the oral proceedings, the proprietor withdrew all pending auxiliary requests and filed a new first auxiliary request:

"1. An anti-NGF antibody for use in the treatment of post-surgical pain, wherein the anti-NGF antibody is for use in suppressing or ameliorating resting pain."

To briefly summarize the proceedings: the BoA considers the normal meaning of the term "post-surgical pain" to include any pain after surgery, including neuropathic pain (after surgery). The proprietor however argues that the term has a more limited meaning in the relevant art and submits, inter alia, an expert opinion. However, the appellant (naturally) disagrees and provides a counter expert opinion. The BoA then considers the patent's description and finds that its definition does not exclude neuropathic pain caused by surgery. The main request is thus considered to lack novelty. The auxiliary request is not admitted into the proceedings as this possible construction of the phrase "post-surgical pain" was deemed to be foreseeable by the respondent (proprietor).

Tuesday, July 17, 2018 T 181/17 - Inventive step attack with document used for novelty attacks as closest prior art

The introduction of new grounds during opposition and opposition appeal proceedings may be difficult, but also the introduction of new lines of reasoning in support of raised grounds of opposition. A raised ground of lack of inventive step may allow assessment of novelty in view of  the closest prior art - G 7/91 and Guidelines (2017) D-III, 5. Also, in a case where a patent has been opposed under Article 100(a) EPC on the grounds of lack of novelty and inventive step having regard to a prior art document, and the ground of lack of novelty has been substantiated, a specific substantiation of the ground of lack of inventive step is neither necessary - given that novelty is a prerequisite for determining whether an invention involves an inventive step and such prerequisite is allegedly not satisfied - nor generally possible without contradicting the reasoning presented in support of lack of novelty; in such a case, the objection of lack of inventive step is not a fresh ground for opposition and can consequently be examined in the appeal proceedings without the agreement of the patentee - T 131/01. One would expect that introducing a new line of attack for an existing ground to be less difficult, e.g. when introducing a new inventive step attack using a document used for novelty as closest porior art. However, in the case below, the inventive step attack based on D17 -not admitted in first instance proceedings, but filed with and admitted into the appeal and used for several novelty attacks- as the closest prior art was not admitted into the proceedings in accordance with Article 13(1) Rules of Procedure of the Boards of Appeal (which provides that any amendment to a party's case after it has filed its grounds of appeal or reply may be admitted and considered at the Board's discretion, where the discretion shall be exercised in view of inter alia the complexity of the new subject-matter submitted, the current state of the proceedings and the need for procedural economy.)

Wednesday, November 29, 2017 T 1332/12 - Admission of corrected translation of prior art in opposition appeal

The opposition division decided that the subject-matter of claim 1 of the main, first, second and third auxiliary requests lacked inventive step over the disclosure of document D7 (JP 07-131734 A) and the common general knowledge of the person skilled in the art (Articles 56 and 100(a) EPC). For the analysis of inventive step, the opposition division referred to document D7T, which was a JPO machine translation of document D7 into English. The patent proprietor (appellant) filed an appeal against this decision and requested that the decision be set aside. In the statement of grounds of appeal, it requested that the patent be maintained in amended form. It submitted arguments as to why the subject-matter of claim 1 of each of the requests met the requirements of Article 56 EPC. With a letter dated 12 October 2015, the appellant submitted a different translation of document D7 (D7JPO) because "the Japanese and the original and the previously translated prior art document D7T is not precise in many aspects". In a communication under Article 15(1) RPBA, annexed to the summons to oral proceedings, the board indicated that it tended to agree with the opposition division's finding that the then second and third auxiliary requests lacked inventive step. It also indicated that it had to be discussed whether translation D7JPO should be admitted into the appeal proceedings (Article 13(1) RPBA).

Wednesday, November 01, 2017 T 514/14 - Respondent could have reacted to the raised objections well in advance to the oral proceedings

In this opposition appeal, the parties were summoned to oral proceedings. In a communication issued in preparation therefor, the Board drew the parties' attention to some issues likely to be addressed at the oral proceedings. The Board inter alia expressed concerns regarding the clarity of claim 1 held allowable by the Opposition Division and pointed out that compliance with Article 84 EPC might also become an issue with regard to the auxiliary requests. Concerning the issue of compliance with Article 123(3) EPC, the Board drew the parties' attention to a specific paragraph of the Case Law Book. The Respondent/proprietor commented on the points addressed in the Board's communication, and defended inter alia its position submitting that the amended claims of all the already pending requests were clear (Article 84 EPC) and complied with Article 123(3) EPC. It nevertheless filed three additional sets of amended claims as auxiliary requests 4 to 7. Oral proceedings before the Board were held. The debate focused on the compliance of the pending claims with Articles 84 EPC and 123(3) EPC. During the oral proceedings, the Respondent filed a further amended set of claims as auxiliary request 1bis, to be intercalated between auxiliary requests 1 and 2. The Appellant/opponent asked not to admit auxiliary request 1bis due to its late-filing. 

Wednesday, September 06, 2017 T 158/14 - Hidden in plain sight

If your appeal to an opposition is entirely based on new documents, which moreover could have been found with a straightforward Espacenet search, should your appeal then be inadmissible? 

The opponent filed two new Japanese documents (D9 and D10) together with its appeal. The proprietor objects to these documents on the basis that they could easily have been found in a search during the opposition period. In particular, the proprietor observes that an Espacenet search in the same EPC class as the opposed patent for the year prior to the priority year gives document D10 as its very first hit.  Document D9 requires a bit more work, but is found in a similar manner. According to the opponent, basing an appeal on these late-filed documents is not only inadmissible but amounts to an abuse of procedure.

The opponent has it own complaints about the proprietor though. Three days before the oral proceedings, a further response is filed of about 90 pages, including new requests. 

The board doesn't go along with either objection. 

Thursday, August 24, 2017 T 293/12 - First substantive response after summons

Will the board admit a 'just in time' submission?

What is the position of a party in opposition appeal who did not respond to the statement of the grounds, but did file a submission in response to the summons to oral proceedings? 

In response to the notice of appeal, one of the opponents (respondent 2) filed a brief letter stating that it would await the statement of grounds of appeal and announced its intention to submit a reply later in due course. After the statement of the grounds was filed, the board set a time limit of 4 month to file such a response. However, no further submissions were filed until a month before oral proceedings. 

The proprietor considers that the opponent has lost it chance to file arguments, by not filing a timely response to the statement of the grounds--since the opponent had not filed a reply to the grounds of appeal, one cannot regard its later submission as an amendment to a party's case. On the other hand, the opponent considers the submission to be just further arguments, and sees no reason why they should not be admitted. The board find a middle ground, taking the submission into account but as a later amendment to a party's case.

Monday, July 31, 2017 T 287/14 - Disclaimers: do not try this at home!

Amendments introducing disclaimers have probably led to more pain than joy. Disclaiming subject-matter in the application-as-filed usually is acceptable, but often has a high risk of lacking inventive step. Disclaiming subject-matter not in the application-as-filed led to G 1/03 already quite some years ago and is well-documented in many later decisions as well as in the Guidelines - strict conditions, which can basically only work out well if there is only one Art.54(3) EPC prior right document with a  single, clear disclosure. Disclaiming embodiments in the application as filed led to G 2/10, which has a quite cryptically phrased headnote, but when read as a whole also gives very clear conditions -it usually is possible, as long as it is clear that something remains and that you do not sneakily change to a different inventive concept-  and it is also well documented in the Guidelines. G 1/03 and G 2/10 relate to different cases, so cannot prima facie be considered as somehow conflicting, but Board 3.3.09 made the currently pending referral G 1/16 while handling appeal T 0437/14 asking a.o. whether the G 2/10 decision effects how some aspects of G 1/03 shall be interpreted. The current decision shows again that even of a disclaimer is made in good faith, it can easily be done wrongly and, as here, of the disclaimer is introduced before grant, one may all too easily end up in an inescapable Art.123(2)-123(3) trap... And the trouble was in this case actually not even in how the disclaimers needs to be drafted, but how novelty has to be assessed... which the opponent did correctly, but the examining division and the applicant/proprietor had not/did not... As to the aux requests, Art. 13(1) and 13(3) RPBA prevented further chances to remedy the trouble.

Tuesday, February 14, 2017 T 2117/11 - Devolutive effect of the appeal

The examining division held that the claims relating, on the one hand, to a needle assembly and, on the other hand, to a method of making a needle assembly were not linked by the same special technical features and this raised a non-unity objection. The applicant subsequently filed a new set of further amended claims limited to a needle assembly. The examining division raised further objections under Articles 123(2), 84, 54(1),(3) EPC, and, after being requeste to do so, took as decision according to the state of the file - to refuse. The applicant appealed. With the statement of grounds, the appellant requested that the decision under appeal be set aside and a patent be granted on the basis of a new set of claims  directed to a needle assembly, as annexed to the statement of grounds. In response to the preliminary opinion issued by the Board and attached to the summons for oral proceedings, the appellant filed a new main request directed to a method of making a needle assembly. The Board did not allow this change because the applicant's choice of limiting to the claimed needle assembly rather than keeping the method as well and challenging the non-unity objection entailed that the examination of the application was limited to the selected subject-matter only, i.e. the claimed needle assembly. The decision was consequently based on the set of claims limited to a needle assembly - and this subject-matter thus defines the limit to the power of the Board to examine the appeal.

Tuesday, August 09, 2016 T 360/11 - Very late needs to be very clear

In this appeal against the decision to refuse, the applicant filed amended claims in response to the summons for oral proceedings, aiming to overcome the Art.84 and Art.123(2) objections in the preliminary opinion of the Board, and further amendments in the course of oral proceedings. The Board did however not admit the amended claims into the proceedings, as very late amendments are required to be very clear. 

Tuesday, June 14, 2016 R 04/14 - Late filed request vs. right to be heard

This petition for review relates to whether or not non-admissibility of a late filed request can be in conflict with the right to be heard under Art. 113(1) EPC, either because of a surprising development of the case, or because of “prima facie” assessment of the allowability of the request.

In the underlying appeal proceedings, the petitioner’s (=proprietor’s) only pending request was not allowed due to lack of clarity. The petitioner was surprised that the discussion of clarity of this particular feature was resumed in the second oral proceedings. The Board had indicated in its summons to the second oral proceedings, that clarity of other features were to be discussed and that it should not be necessary to repeat the argument presented in the first oral proceedings (where this feature had been discussed but not decided on). However, respondent III had indicated in its response, that it still considered it relevant to discuss the clarity of the feature in question.

At the beginning of the second oral proceedings, the petitioner only had one request on file. This request is found unallowable due to lack to clarity. The petitioner filed a new main request during the oral proceedings, which request was not admitted into the proceedings.

The questions here addressed by the Enlarged Board of Appeal are therefore:

1. Can the Petitioner objectively be considered to have been surprised by the Board’s decision in the second oral proceedings?, and

2. Can a “prima facie” assessment of the allowability of a request constitute a violation of the right to be heard?

Wednesday, May 25, 2016 T 11/55 Swapping of closest prior art in oral appeal proceedings

This decision gives the criteria for in which situations it is allowable to change closest prior art document, compared to what was argued in response to the summons to oral proceedings in appeal (in this case by swapping two prior art documents around), during the oral proceedings of appeal (see reason 2).

Furthermore, the decision reiterates that the burden of proof against inventive step lies with the opponent and accordingly, if the opponent doesn’t provide proof to the contrary, the board has no other choice than to consider a claim inventive (see reason 5.3).

Tuesday, March 15, 2016 T 1921/10 - No prominent role...

In this examination appeal, the applicant submitted auxiliary requests in response to the summons for oral proceedings. The amendments made to the auxiliary requests with respect to the main request had been derived from originally-filed claims 5 and 6. However, these claims had not played a prominent role in examination and appeal proceedings...

Monday, February 22, 2016 T 1533/13 - Expectation or speculation? An explanation needed to make the difference!

After the opposition division revoked the patent in its entirety, the patent proprietor (the appellant) filed an appeal and submitted with the statement setting out the grounds of appeal a main and ten auxiliary requests, and gave reasons why the impugned decision should be set aside. The respondent requested that the appeal be rejected as inadmissible, because of an alleged lack of substantive reasoning as to why the impugned decision was wrong, or that it be dismissed. The Board had to decide on the admissibility of late-filed claim requests based on claim requests already filed without explanation with the statement of grounds of appeal.

Friday, August 28, 2015 T 1273/11 - Provoking appeal

Of interest in this opposition appeal is the request of the respondent that his costs are to be apportioned to the appellant as, according to the respondent, the costs related to the present appeal have been deliberately provoked by the appellant because he withheld relevant material from the first instance proceedings, and therefore prevented the opposition division from taking a complete decision encompassing also this material.

Of further interest is the Board deciding on admissibility of late filed requests, which according to the respondent should be admitted since they are a reaction to the communication of the Board and have been submitted timely before the oral proceedings, such that the appellant had enough time to do a search and prepare for discussing them.

Summary of Facts and Submissions

I. The appellant (opponent) lodged an appeal against the decision rejecting the opposition against European patent EP-B-1 474 347, and requested that the decision under appeal be set aside and that the patent be revoked.

He also submitted further written evidence and offered two new witnesses.

II. The respondent (patent proprietor) requested that the appeal be dismissed, alternatively, that the decision under appeal be set aside and the patent be maintained on the basis of any of the auxiliary requests 1 to 4, filed with the statement setting out the grounds of appeal, or on the basis of any of the auxiliary requests 5 or 6, filed with the letter dated 23 June 2015.

Additionally the respondent requested not to admit the new evidence submitted with the statement of grounds of appeal, and that his costs be apportioned to the appellant.

Friday, June 19, 2015 R 6/14 - "The minutes clearly indicate that there were no further requests"

In this petition for review (in German), the appellant (proprietor in opposition appeal against the decision to revoke the patent) argued that his right to be heard on auxiliary requests was violated. The minutes of the oral proceedings indicated that the appellant had withdrawn all requests that were submitted in the written procedure, including the request to maintain the patent as granted. Earlier filed first auxiliary request was maintained as main request. The minutes further indicated that, during further discussion of the factual and legal framework of the appeal, the appellant filed a reformulation of the earlier filed first auxiliary request with handwritten additions, and requested to maintain the patent in amended form according to this "first auxiliary request with handwritten additions", or according to earlier filed aux 4 and aux 7 (current aux 1 and 2) with "the same handwritten additions". All earlier requests were withdrawn. After the chairman asked whether the appellant wanted to filed more requests or remarks, the appellant indicated he did not wish to do so. The chairman subsequently called the debate closed, and, after deliberation, the Board rejected the petition as the claims with the handwritten additions were not prima facie clear. The written decision indicated that the Board exercised its discretion under Art 12(4) and 13(1) RPBA to not admit any of the lastly submitted request into the procedure, so that no requests were pending.

In the petition for review, the appellant submitted that his right to be heard as to the exact formulation of the claims of aux 4 and aux 7 with "the same handwritten additions" was violated, and that the decision was based on an indication about the direction into which the actual amendments would be directed, but that no concrete claim formulation had been submitted yet as reformulations of aux 4 and aux 7 with "the same handwritten additions". The appellant further submitted, in response to a communication of the Enlarged Board, that the minutes did not contain all details as to how the dialogue between the appellant and the Board had taken place.

The Enlarged Board concluded, in a 3-member composition, that the petition was not clearly not inadmissible, but was clearly not allowable, as the minutes clearly indicated what the appellant's request were and that the appellant has no further requests (reason 5-6 and 8), and because the appellant had not immediately challenged the accurateness of the minutes after its notification (reason 7 and 11).

The request for revision was rejected.

Monday, March 23, 2015 T 1363/12 - Gold does not erode

The applicant appealed the refusal of the Examining Division due to an alleged non-compliance with Art.123(2) EPC. He filed an appeal, and argued compliance with Art.123(2) EPC in view of a presumed interpretation of how to apply G 2/10 in a newly added paragraph in the November 2014 edition of Guidelines. Did the gold standard for the fundamental test under Article 123(2) EPC change?