Tuesday, November 03, 2020 T 1439/16 - Late filed request with deleted claim allowable as it improves procedural economy

In response to the Boards preliminary opinion, the proprietor filed a request (auxiliary request 6) by deleting claim 1 of an existing request. This resolved an added subject matter problem. The opponent objects against the new request as being late filed. The Board agrees that the request ought to have been filed with the proprietor's reply to the statement setting out the grounds of appeal. However, since a claim has been deleted procedural economy has improved, and so the request is allowed. 

In response, the opponent voices new added subject matter objections to (now) claim 7 of the new request. These are not allowed in the procedure, as that would be detrimental to procedural economy. The objection should have been raised before the oral proceedings-- It was the choice of the appellant to make an objection for added subject-matter only to claim 1 and not to (then) claim 8 in the statement setting out the grounds of appeal.

Friday, February 12, 2016 R 0018/14 - Different understanding of issue

"The poetry of logic"

In this petition for review, the petitioner argued that its right to be heard has been fundamentally violated in that the debate which took place during oral proceedings lacked essential aspects in respect of novelty of independent claim 1; these only appeared in the reasoning of the written decision and were said to be entirely new for the petitioner.

During oral proceedings before the Enlarged Board, the petitioner explained that when a Board of Appeal intends, as in the present case, to depart from a common logical reasoning, it should inform the parties in advance so that they have an opportunity to react in an appropriate manner.

Tuesday, May 05, 2015 T 2541/11 - "Right to be heard not absolute, but must be balanced"

The appellant-opponent lodged an appeal against the interlocutory decision of the opposition division  on the amended form in which European patent no. 1394387 could be maintained. The appellant-proprietor also lodged an appeal against the above interlocutory decision. The appellant-opponent filed a new document, E12, with their grounds of appeal. The Board did not admit this new document.

Background / Summary of Facts and Submissions

I. The appellant-opponent lodged an appeal, received 12 December 2011, against the interlocutory decision of the opposition division posted on 13 October 2011 on the amended form in which European patent no. 1394387 could be maintained and paid the appeal fee simultaneously. The statement setting out the grounds of appeal was filed on 23 February 2012.

The appellant-proprietor also lodged an appeal, received 14 December 2011 against the above interlocutory decision and paid the appeal fee simultaneously. The statement setting out the grounds of appeal was filed on 20 February 2012.

II. The opposition was filed against the patent as a whole and based inter alia on Article 100(a) together with Articles 52(1) and 54(3) EPC for lack of novelty and Article 56 EPC for lack of inventive step.

The division held, inter alia, that the grounds for opposition (novelty and inventive step) mentioned in Article 100(a) EPC did not prejudice maintenance of the patent as amended according to an auxiliary request, having regard to the following documents, amongst others: E1, E4, E6, E9.

III. The appellant-opponent filed the following document with their grounds of appeal: E12.

IV. Oral proceedings before the Board were duly held on 17 December 2014. During the oral proceedings, the appellant-opponent filed an objection under Rule 106 EPC in writing. It reads as follows:

Objection acc. to Rule 106 EPC; in the name of the opponent.

The decision to not admit reference E12 into the proceedings constitutes a violation against the right to be heard for the following reasons: