Thursday, May 20, 2021 T 1294/16 - A matter of principle

A few interesting topics in this decision of the Board of Appeal, wherein an appeal was filed against the decision of the Examining Division to refuse the application.

1. If there is a prior art document D2 that has the same purpose or objective as the claimed invention, is it then possible that another document D1 that has a different purpose is chosen as the closest prior art for assessing inventive step?
   
2. Is it a substantial procedural violation if the decision of the Examining Division is based on D1 as closest prior art, when  - allegedly -  in the oral proceedings before the Examining Division, only D2 was considered as the closest prior art? Is it "implicit" that both D1 and D2  had been considered as closest prior art, and is this "implicit discussion" sufficient to satisfy the appellant's right to be heard? 
   
3. Can a difference (relative) to D1 in the mathematical formula claimed be an argument for inventive step?
4. In view of RPBA 2020 Article 13(1) and (2), may the Board still admit requests that were filed after notification of the summons to oral proceedings, and during oral proceedings?

Tuesday, September 01, 2020 T 2214/15 - Ordinary, not exceptional

According to Article 13(2) of the revised Rules of Procedure of the Boards of Appeal (RPBA 2020), any amendment to a party’s appeal case made after notification of a summons to oral proceedings (or after a deadline set by the Board with an express invitation to file observations) shall, in principle, not be taken into account unless there are exceptional circumstances, which have been justified with cogent reasons by the party concerned. The basic principle of this third level of the new "convergent approach" applicable in EPO appeal proceedings is that, at this stage of the appeal proceedings, amendments to a party’s appeal case are not to be taken into consideration. Only if a party can present compelling reasons which justify clearly why the circumstances leading to the amendment are indeed exceptional in the particular case. For example, if a party submits that the Board raised an objection for the first time, it must explain precisely why this objection is new and does not fall under objections previously raised by the Board (or a party). The Board may decide to admit the amendment in the exercise of its discretion. 

In the present examination appeal case, the appellant had filed Auxiliary Request 2 after notification of the summons to oral proceedings. During oral proceedings, the appellant argued that this late-filed request should be admitted, as the Board had raised a number of new issues in the summons to which auxiliary request 2 represented a good faith reaction. Indeed, the Board accepted that in the present case this represented exceptional circumstances within the meaning of Article 13(2) RPBA 2020.
Unfortunately, the Board found that Auxiliary Request 2 does not comply with Articles 84 and 123(2). 

Auxiliary Request 3 filed subsequently during oral proceedings was however not admitted. While the appellant asserted that a further request should be admitted because the Board had raised new objections in connection with the second auxiliary request that the appellant could not have been expected to anticipate, the Board was not persuaded by these arguments. According to the Board, the topics of discussion in view of auxiliary request 2 did not differ in substance from those identified in the summons; the identification of newly introduced problems when attempting to solve issues discussed in the procedure up to that point is rather to be seen as the ordinary development of the discussion, rather than an exceptional circumstance justifying the admittance of a further auxiliary request. In the view of the Board, if such newly introduced problems would represent exceptional circumstances, this would imply that the appellant would have to be given repeated opportunity to file amended claims until no new problems were introduced. Such a procedure could only be characterised as a continuation of the first-instance examination proceedings and would thus be at odds with the primary object of the appeal proceedings of a judicial review of the impugned decision.

Catchword
If amendments intended to overcome objections of lack of support and lack of clarity raised in the summons give rise to further objections concerning clarity or added subject-matter, pointing out these further objections does not represent exceptional circumstances within the meaning of Article 13(2) RPBA 2020, but rather an ordinary development of the discussion which does not go beyond the framework of the initial objection. See reasons 5.3 and 5.4.

Wednesday, February 26, 2020 T 2063/15 - Amendment not occasioned by a ground for opposition

Rule 80 EPC stipulates that amendments to the claims of a granted patent may be made provided that these are occasioned by a ground for opposition. In the present opposition appeal case, the main request and Auxiliary request 1 were not allowed for lack of novelty and lack of clarity, respectively. The subsequent Auxiliary request 2 and Auxiliary request 3 both contained an additional independent claim (i.e., claim 2).

Claims 1 and 2 of auxiliary request 2 were based on combinations of claims 1 and 2 and claims 1 and 9 as granted respectively. The Board considered Auxiliary request 2 not to violate Rule 80 EPC, since granted claims 2 and 9 were each separately dependent upon granted claim 1, found not to be novel; thus, the amendments made to the claims in auxiliary request 2 were occasioned by a ground for opposition. Regardless, Auxiliary request 2 was considered to lack novelty.

In auxiliary request 3, claim 1 was based on a combination of claims 1 and 2 as granted and additional features taken from the description. Claim 2 was the same as in the preceding request. The Board found that the inclusion of the additional independent claim 1, based on claims 1 and 2 as granted in combination with features taken from the description, was no longer simply occasioned by a ground for opposition since this ground was already addressed through the filing of independent claim 2. Accordingly, the amendments made to the claims were deemed not occasioned by a ground for opposition contrary to the requirement of Rule 80 EPC. Auxiliary request 3 was therefore not allowable.

Tuesday, January 14, 2020 T 1711/16 - Prima facie (ir)relevance is not always relevant

The admittance of evidence into appeal proceedings is left to the discretionary powers of the Board of Appeal (Article 12(4) RPBA). It is established case law (cf. G 7/93) that Boards of Appeal should only overturn discretionary decisions of the department of first instance if it is concluded that the department of first instance exercised its discretion according to the wrong principles, or without taking into account the right principles or in an unreasonable way.

In the present appeal case, prior art documents D6 and D7 were submitted by the opponent in response to concerns regarding the nature of a certain additive "Disperbyk-111", as expressed by the Opposition Division in its preliminary opinion accompanying summons for oral proceedings. Documents D6 and D7 were filed within the final date for making submissions set in this communication. The Opposition Division considered D6 and D7 late filed and prima facie not constituting evidence regarding the nature of "Disperbyk-111"; accordingly, the Division did not admit D6 and D7 into the proceedings.

The Board however found that D6 and D7 were timely submitted by the opponent in a fair attempt to dispel doubts about the meaning of "Disperbyk-111" voiced by the Opposition Division. As such, the "prima facie relevance" (or lack thereof) in providing convincing evidence of the identity of "Disperbyk-111" was in this case irrelevant, as the decisive point is rather whether these documents and the submissions made in their respect deal with that issue and were timely submitted. Consequently, the decision of the first instance department not to admit D6 and D7 into the proceedings was overturned.

The Board did not admit the second to nineteenth auxiliary requests of the proprietor - already filed during first instance proceedings - to the proceedings for lack of proper substantiation.

Friday, October 12, 2018 T 1280/14 - No switching between lines of defense

Can the Board exercise its discretion under Art. 13 RPBA not to admit auxiliary requests in the proceedings even if these have already been filed in direct response to the Opponent/Appellant's grounds of appeal and correspond to those submitted during first instance proceedings?

In the present case, the Opposition Division had rejected the opposition against the patent. In the ensuing appeal, the Opponent-Appellant already requested in his grounds that none of the (39) auxiliary requests filed during opposition proceedings be admitted, as these were "excessive, filed in unspecified order, and/or late filed".

In his response to the grounds, the Proprietor-Respondent filed 15 auxiliary requests based on a selection from the requests filed during opposition proceedings. The Proprietor stated that these auxiliary requests were properly numbered, therefore having a clearly specified order. From the arguments in support of the requests it could be deduced that these requests were classifiable as forming six diverging lines of defense, auxiliary requests 1, 2 and 4 thereof forming the first line of defense.

In the summons for oral proceedings, the Board pointed out (referring to T 1903/13) that the Proprietor should be prepared to comment on how the other diverging lines of defense would represent the alleged invention. The Proprietor did not provide any further comments.

Accordingly, the Opponent/Appellant and the Board had to assume prior to the oral proceedings that the Respondent intended, after the main request, to first prepare the patent in suit in accordance with the first line of defense, with auxiliary requests 1, 2 and 4 to defend. However, it was not until the oral hearing (in which the Main Request had fallen as lacking novelty over prior art document D9 filed with the Opponent-Appellant's grounds) that the Proprietor made it clear that he now intended to only pursue his third and sixth lines of defense - corresponding to auxiliary requests 8 and 15, respectively, and renumbered as auxiliary requests 1 and 2.

This unannounced change of strategy did not fare well with the Board, who found that both the Opponent and Board had unnecessarily prepared for auxiliary requests which turned out not to be relevant in the further proceedings; thus, the Respondent had not complied with the procedural economics offered. According to the Board, contrary to the Respondent's submission, his actions did not constitute a mere renumbering of the requests, since new auxiliary requests 1 and 2 (formerly auxiliary requests 8 and 15) corresponded to lines of defense diverging from the former auxiliary requests 1, 2 and 4. Thus, what was now claimed as an invention had fundamentally shifted. Hereby, the multiplicity of interlocked features rendered the changes in subject-matter of the auxiliary requests very complex.

As a result, remaining auxiliary requests 1 and 2 were not admitted in the proceedings and the patent was revoked.

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 18, 2017 T 1138/12 - Creative opposition issues

In this appeal in opposition several issues came up. The patent proprietor filed a very creative (second) auxiliary request which basically amounted to "Opposition division, tell me which claims (of the first auxiliary request) are allowable". The patent proprietor was also unhappy about the short time it took the opposition division to reach a decision while allegedly not all members were present at the same time. (please note that the decision is 33 pages, so the following is a brief summary!).

Wednesday, June 28, 2017 T 1903/13 - Diverging auxiliary requests

In this appeal in opposition, the Board considered it to be within the board's discretion not to admit auxiliary requests which define subject-matter "diverging" from subject-matter of higher ranking requests, including those requests which, in essence, were filed during first-instance proceedings and re-filed with the respondent's reply, but were not examined by the first-instance department. 

Tuesday, January 12, 2016 T 1649/10 - Closest prior art switching

The Opposition division denied patentability of the Main Request based on a document D10 as the closest prior art and then the teaching of D4 that suggested the use of the missing feature (a scatterer). The patent was maintained in amended form based on an auxiliary request. The opponent (appellant I) and the proprietor (appellant II) appealed. The Board Appeal decided that the appeal of appellant II was inadmissible because in the statements of grounds it was argued that there was inventive step when taking D4 as the closest prior art in view of D10. The Board decided that such simple 'turning around' of the closest prior art is not allowed. Importantly, appellant II did not provide arguments why D4 should be considered as the closest prior art in the statements of grounds, which would have made the appeal admissible. The end result was that appellant II was 'out of the game' and could not put forward any new arguments and new auxiliary requests. Even worse: the patent was revoked, while before the appeal procedure there was at least an auxiliary request that was held allowable. The lesson is: Even if you think that the earlier selected closest prior art is in your eyes not the closest prior art, at least argue WHY you think that is, not simply start from the closest prior art that you prefer.  

Summary of Facts and Submissions

I. The appeals lie from the interlocutory decision of the opposition division to maintain European patent No. 1 378 265 in an amended form. The decision was dispatched on 16 June 2010.

[...]

II. The opposition, which led to the decision appealed in the present case, was filed against the patent as a whole and based on the ground that the claimed subject-matter was not patentable (Article 100 (a) EPC 1973) because it was not new (Articles 52(1) and 54 EPC 1973) and did not involve an inventive step (Articles 52(1) and 56 EPC 1973).

III. In the "Reasons" for its decision to maintain the patent in amended form, the opposition division held that the subject-matter of claim 1 of the patent as granted did not involve an inventive step in the sense of Article 56 EPC 1973. In the analysis developed by the opposition division according to the problem/solution approach, the opposition division relied on the teaching of document D10 [...] as closet [sic] prior art. Since the sole difference between the claimed subject-matter and document D10 resided, in the opposition division's view, in the presence of a scatterer, the problem solved by the invention was to enlarge the irradiation beam and consequently to increase the speed of treatment. According to the opposition division, the skilled person would have found a solution to the problem of enlargement of the charged particle beam in document D4 [...].

The opposition division decided to maintain the patent as amended according to the first auxiliary request then pending. The objective problem of reducing the loss of particles at the edges of the treatment region, defined with regard to document D10 as closest prior art, was not addressed in D4.

Thursday, July 16, 2015 T 1846/10 - Describe what you claim

When the claims relate to attenuated bacteria for the production of a vaccine (here for pigs), but such attenuated bacteria were not available at the time of filing, then it is best to describe in the application as filed how to attenuate. If you don't, or in the present case show data that attenuation was in fact doubtful or even absent, you fail miserably under Art 83 EPC, as becomes clear in this decision where the proprietor that aimed at a general production method for a Lawsonia intracellularis vaccine was left with nothing else than a single bacterial strain from auxiliary request VI for which it could not be shown that that strain was not attenuated and thus, the proprietor was given the benefit of the doubt for that particular strain.

Wednesday, February 11, 2015 T 2540/12 - extrapolation of disclosure closest prior art

This appeal lies from a decision of the Opposition Division filed by the opponent. The Opposition Division maintained the patent as granted and the opponent (Appelant) filed the appeal. In this appeal there was an interesting discussion about inventive step. The subject of the discussion was whether the skilled person would extrapolate results of a scientific study presented in the closest prior art such that he arrives at an embodiment falling within the scope of the main claim of the main request. The study addressed the effects of an early diet of infants on their later life. One has to realize that the effect of the main claim is not really different from the effect of the disclosure of the closest prior art. Another interesting point of this decision is the admissibility of an auxiliary request introduced at the end of the oral proceedings while the same request was withdrawn earlier during the same oral proceedings.

Summary of Facts and Submissions
 
(...) 


III. The opposition division's decision was based on the claims as granted, of which claim 1 reads as follows:"1. Use of nutrient in the manufacture of a feeding formula for feeding to human infants in the period up to 2 months of age to avoid long-term adverse health effects consequent upon excessive weight gain in that period, wherein said feeding formula comprises 0.5 to 1.00 grams of protein and 25-50 kilocalories per 100 ml."

The subject-matter of claim 1 differed from the closest prior art document D1 in that a feeding formula was used comprising 0.5 to 1.00 grams of protein and 25 to 50 kilocalories per 100 ml. The objective technical problem was seen as how to find a feeding routine for early postnatal nutrition that reduced the risk of long-term adverse health effects consequent upon excessive weight gain caused by using infant formulae. It was credible that the technical effect of reducing long-term adverse health effects upon excessive weight gain was achieved by the feeding formula as required in granted claim 1. D1 acknowledged a relationship between nutrient-enriched diets given to neonates and obesity in later life. There was however no teaching in D1 to modify existing feeding formulae according to claim 1. D1 merely suggested that breastfeeding was preferable for obtaining the long-term benefit on adiposity. The opponent's argument that the experimental data in D1 would lead the skilled person in an obvious way to the claimed solution in the same way as the experimental data of the opposed patent was not considered to be convincing as this reasoning would be based on hindsight knowledge of the invention. The subject-matter of claim 1, formulated as a plausible prediction on the basis of the experimental data in the contested patent, indeed appeared logical a posteriori. However in the absence of a pointer in D1 to reconsider the energy and protein requirements of commercial feeding formulae in order to solve the above-mentioned objective technical problem, the skilled person would not have arrived at the claimed solution in an obvious way.

(...) 

XII. So far as relevant to the present decision, the appellant's arguments can be summarised as follows:
- Main request
The claims of the main request were not based on the application as filed and the invention defined in these claims was not sufficiently disclosed.
Furthermore, the subject-matter of claim 1 was not inventive in view of D1 as the closest prior art. The formula of claim 1 differed from those disclosed in D1 in that the protein and energy content was slightly lower. No data were contained in the opposed patent as to the claimed formula and no effect had been attributed to the slight reduction in protein and energy content. Hence it had to be assumed that the formula of D1 provided the same effect as that of claim 1. Therefore the objective technical problem solved in the light of D1 was the provision of an alternative composition to achieve the same therapeutic effect. D1 already pointed at lowering the protein and energy content since lower protein and energy contents let to lower leptin concentrations and hence less risk of obesity in later life. In this respect, trial 2 of D1 was relevant, in which the use of a non-enriched standard term formula instead of the preterm formula led to a reduction in the leptin concentration of 29%. In view of the respondent's arguments made during the discussion of sufficiency of disclosure (see point 2.5 below), it had to be assumed that the skilled person would extrapolate the trend observed in this trial towards even lower protein and energy contents, such that he would arrive at the subject-matter of claim 1.

(...)

XIII. So far as relevant to the present decision, the respondent's arguments can be summarised as follows:- Main request
D1 was the closest prior art, from which the claimed formula differed in terms of the protein and energy content. The objective technical problem was how to avoid in formula-fed infants the risk of creating long-term adverse health effects. There was no significant difference in D1 between formula-fed infants and infants that had received breast milk, and between infants having received the preterm formula and those having been fed banked breast milk. The skilled person would thus not have been motivated to change the composition of the preterm and term formulae in D1. Furthermore, it was commonly known that breast milk was the "gold standard". Therefore, the fact that the preterm formula in D1 was less beneficial than mother's own expressed breast milk would not induce the skilled person to modify the preterm formula. Also the authors of D22 had realised that formula-fed infants had a higher fasting insulin concentration than breastfed infants but had not suggested modifying the formulae. Finally, there was nothing about insulin resistance in D1 and the skilled person would thus not have been motivated to choose the claimed formula to avoid insulin resistance.

(...)

Reasons for the Decision
 
(...) 

2. Inventive step

2.1 The invention underlying the opposed patent relates to the use of infant formulae to avoid long-term adverse health effects consequent upon excessive weight gain (paragraphs [0006], [0007] and [0010] and claim 1 of the patent).

(...)

2.2 D1 is a scientific paper published by a group of authors including the two inventors of the opposed patent. In the same way as in the patent, this paper is dealing with the effects of early diet on later life. The study described in D1 is exactly that disclosed in the patent, i.e. the infant group, study design and formulae (a) to (d) applied in the study of the patent are used in D1 as well (as regards infants and study design of feeding the infants, see paragraph bridging left- and right-hand column on page 994; as regards formulae, see the first full paragraph on the right-hand column of page 994; as regards the study design of the follow up, see the first paragraph on the left-hand column on page 995). The only difference between the study in D1 and that in the opposed patent is that in D1 the relative leptin concentrations indicative for obesity in later life are measured in the follow up (abstract on page 993 and conclusions on page 998), rather than the 32-33 split proinsulin concentration and the flow-mediated endothelial dependent dilation (FMD) in the patent.
D1 is thus in the same technical field and aims at the same objective as the opposed patent. As acknowledged by both parties, D1 therefore can be considered to represent the closest prior art.
In the same way as the diets used for the examples in the opposed patent, the diets used in D1 are different from the formula defined in claim 1 of the opposed patent in that the protein and energy contents in D1 are slightly higher than those of the formula according to claim 1.

2.3 According to the respondent, the problem solved by the patent was how to avoid, in the case of formula-fed infants, the risk of creating long-term adverse health effects.

2.4 As a solution to this problem, the patent proposes the use according to claim 1, characterised in that an infant formula is applied with a slightly lower protein and energy content than that present in the term formula of D1, namely 0.5-1.00 g/100ml of protein and 25-50 kcal/100ml.

2.5 It needs to be examined whether this problem has been credibly solved by the claimed subject-matter, i.e. by the lower protein and energy contents required by claim 1.
During the discussion of sufficiency of disclosure during the oral proceedings before the board, the respondent explained that the skilled person looking at the experiments in the study described in the opposed patent would have reasonably expected that the trend observed in this study, namely that lower protein and energy contents led to lower insulin resistance and endothelial dysfunction, could be extrapolated to the even lower protein and energy contents required by claim 1. In other words, the skilled person would have expected that at these even lower protein and energy contents, insulin resistance and endothelial dysfunction would be avoided.
The board accepts this argument and therefore considers it to be credible that the above problem (point 2.3) is solved by the subject-matter of claim 1. This problem thus represents the objective technical problem.

2.6 It needs finally to be examined whether in view of this problem, the claimed solution is obvious.

2.6.1 In trial 2 of D1, children fed the term formula were compared to children fed the preterm formula (figure 1 on page 994). It was found that children who had received the term formula (with a lower protein and energy content, see point 2.1.1 above) had a leptin concentration at the age of 13 to 16 years that was 29.0% lower than children who had received the preterm formula (trial 2 in table 3 on page 997 and lines 10 to 16 of the left-hand column on page 998 of D1), and this correlated to a lower risk of obesity in later life (lines 4 to 6 of the right-hand column on page 997 of D1).
Hence, exactly the same trend is described in D1 as in the patent, namely that a lower protein and energy content of the term formula reduces adverse health effects in later life (obesity in D1 and insulin resistance and endothelial dysfunction in the opposed patent).

2.6.2 Accepting the respondent's argument that in the patent this trend can be extrapolated to lower protein and energy contents as required by claim 1, which the board does (point 2.5 above), the same must be assumed for D1. More specifically, in the same way as for the study described in the patent, it must be assumed that the skilled person reading D1 would expect that by reducing the protein and energy content of the term formula in D1 even further, the risk of obesity in later life would be avoided. The skilled person seeking to achieve this avoidance would thus reduce the protein and energy content of the term formula of D1 and would thereby arrive at the subject-matter of claim 1. This subject-matter is therefore obvious in view of D1.

2.7 The respondent's arguments made as regards inventive step are in this respect not convincing:

2.7.1 The respondent argued that there was no significant difference in D1 between formula-fed infants and infants that had received breast milk and between infants having received the preterm formula and those having been fed banked breast milk. The skilled person would thus not have been motivated to change the composition of the preterm or term formulae in D1.
However, this argument is not relevant since D1 contains a comparison of infants fed with a term formula and those fed with a preterm formula and since, as has been set out above, in view of this comparison the claimed subject-matter is obvious.

2.7.2 The respondent also argued that it was commonly known that breast milk was the "gold standard". Therefore, the fact that the preterm formula in D1 was less beneficial than mother's own expressed breast milk would not induce the skilled person to modify the preterm formula. Also the authors of D22 had realised that formula-fed infants had a higher fasting insulin concentration than breastfed infants but did not suggest modifying the formula.
However, in the same way as for the respondent's first argument, this argument disregards the fact that D1 contains a comparison between a preterm and a term formula and that, on the basis of this comparison, the claimed subject-matter is obvious.

2.7.3 The respondent further argued that there was nothing about insulin resistance in D1.
This argument is not relevant either since claim 1 is not restricted to the avoidance of insulin resistance but covers the avoidance of adverse health effects in general.

2.8 The subject-matter of claim 1 therefore lacks inventive step in view of D1.

(...)

Auxiliary request

4. Admissibility

4.1 The auxiliary request (hereinafter "new auxiliary request") was filed at approximately 2.50 pm during the oral proceedings before the board. Pursuant to Article 13(1) RPBA, it is at the board's discretion to admit or not to admit the new auxiliary request. This discretion shall be exercised in view of inter alia the need for procedural economy. When exercising this discretion, the board has to take into account the respondent's behaviour during the oral proceedings (T 1790/06, point 16). To decide on the admissibility of the new auxiliary request, it is therefore necessary to reiterate the course of the present oral proceedings, including the respondent's latest written submissions.

4.2 With letter dated 17 December 2014, the respondent had filed two auxiliary requests, namely an AUXILIARY REQUEST and an AUXILIARY REQUEST 2 (see point IX above). Oral proceedings were held on 13 January 2015 and started with the discussion of the respondent's main request. After the board had announced its opinion that the main request was not inventive, the respondent withdrew its AUXILIARY REQUEST filed with letter of 17 December 2014. Subsequently, the admissibility of AUXILIARY REQUEST 2 was discussed, focusing on problems arising due to the amendment of the time period defined in claim 1. This AUXILIARY REQUEST 2 was again withdrawn and new auxiliary requests 2 and 3 were filed. The admissibility of these two requests was then discussed, again focusing on problems concerning the now differently amended time period in claim 1. Also these auxiliary requests were subsequently withdrawn and at approximately 2.50 pm the new auxiliary request was filed.
The new auxiliary request is in essence identical to the AUXILIARY REQUEST filed with letter of 17 December 2014 but then withdrawn in the oral proceedings. The filing of the new auxiliary request thus essentially represents a re-introduction of the withdrawn AUXILIARY REQUEST, after several hours of discussion on several other also later withdrawn auxiliary requests. Because of the way in which the requests were filed and later withdrawn, the discussion during the oral proceedings went in circles, such that the conduct of the oral proceedings became very inefficient. The respondent thereby did not comply with its duty as regards the efficient conduct of the oral proceedings (T 1790/06, point 16).

4.3 The respondent argued that proceedings before the boards of appeal were about giving justice to all parties and the oral proceedings should therefore be conducted so as to find out whether the new auxiliary request was allowable.
(...) 
The board accepts that the way the respondent acted during the oral proceedings did not entail any devious intent. Nevertheless, as set out above, the respondent's behaviour impaired the efficient conduct of the oral proceedings and this in itself was sufficient reason not to admit the new auxiliary request.

4.4 The board therefore decided not to admit the new auxiliary request into the proceedings.

(...)

Order

For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.

This decision has European Case Law Identifier: ECLI:EP:BA:2015:T254012.20150113. The whole decision can be found here. The file wrapper can be found here. Comic obtained from xkcd.