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. 

Friday, July 22, 2016 T 1663/13: apportionment of costs of appeal procedure

This appeal has been filed after a decision of the Opposition Division and the decision relates to the apportionment of costs of the appeal procedure.
In this case it is not the first time that apportionment of costs is a subject of the discussion. Also during the Opposition procedure, in view of the fact that the Opponent had informed the EPO only at a very late stage that it would not attend the oral proceedings, the Opposition Division decided that the proprietor's request for apportionment of costs was justified and ordered that its travel and accommodation costs be borne in full by the Opponent.
The Opponent filed the appeal. In his statement of grounds he argued that the patent should be revoked. He did not appeal to the decision of the apportionment of costs. Three days before (first) scheduled oral proceedings of the Appeal, the Opponent (Appellant) withdrew its request for oral proceedings and withdrew the appeal. Thereafter the proprietor requested apportionment of costs for the costs that he made with respect to the appeal procedure. After some communication in writing, the Board summoned the parties for (second) oral proceedings to discuss the apportionment of costs of the appeal proceedings. The proprietor informed the Board that he would not attend the (second) oral proceedings. The Opponent requested one day before the (second) oral proceedings a postponement of the (second) oral proceedings. 
This decision discusses whether the (second) oral proceedings will be postponed and discusses the apportionment of costs of the Appeal proceedings. The history of the file seems to influence the decision.