Tuesday, March 07, 2017 T 1768/11 - Almost destroyed the chance to present new requests with the statement of grounds

In the Annex to the summons for oral proceedings, the Examining Division raised objections under Art. 84, 123(2) and 56 EPC.  The applicant responded by requesting "that instead of Oral Proceedings an appealable decision be issued based on the state of the file". The applicant neither commented on the substance of the communication nor submitted amended claims. After the Examining Division had issued the requested decision, the applicant filed the present appeal and, with its statement of grounds of appeal, replaced its sole substantive request with a new main request and first and second auxiliary request. The applicant hereby took a major risk: when wanting to file new requests, the proper reaction would have been to comment on the objections and file amended claims in first instance proceedings, as Art. 12(4) Rule of Procedure of the Board of Appeal allows the Board to held requests inadmissible that could -and should- have been presented in first instance. Luckily, the Board decided to exercise this discretionary power in the appellant's favour and to admit them into the proceedings (... but they failed on Art.123(2) and 84).