Key points
- “For the purposes of Article 113(1) EPC, parties and their representatives have no duty to monitor the proceedings themselves by regularly inspecting the electronic file (cf. R 4/17, point 4 of the reasons)”
- “In the case at hand, auxiliary request I was filed before the expiry of the deadline the opposition division had set under Rule 116(1) EPC. It was therefore not filed late by the patent proprietor. Auxiliary request I also addressed deficiencies which had been identified by the opposition division, and the opposition division gave the opponent the opportunity to comment on the admittance of auxiliary request I (see point 7 of the minutes of the oral proceedings before the opposition division).”
- The Board does not comment on the Rule 79 response period.
- “The opposition division further stated in its written decision that three weeks [between receipt of the AR by the opponent and the oral proceedings] were sufficient for the opponent to analyse the new request. In this context, it referred to the extent of the amendments carried out and to the aid provided by the patent proprietor's comparison table (see points 15.1 and 16.1 of the decision under appeal), as well as to carrying out a search if deemed necessary by the opponent []. Thereby, the opposition division applied the correct principles and addressed the opponent's main arguments. The Board thus concludes that the opposition division exercised its discretion with regard to the request for postponement neither according to the wrong principles nor in an unreasonable way which would have exceeded the proper limits of its discretion. In this context, it is not for the Board to say whether a longer period of preparation - which could have been achieved by setting an earlier final date for making written submissions under Rule 116(1) EPC - may have been more appropriate in the given circumstances.”
- I note that it seems this Board assesses alleged substantial procedural violations by the OD in a deferential way. The Board does not examine whether the 3 weeks were actually sufficient to satisfy the opponent's right to be heard, only that the OD said so and gave reasons.
T 2371/18
https://www.epo.org/law-practice/case-law-appeals/recent/t182371eu1.html
6. Right to be heard and reimbursement of the appeal fee
6.1 In essence, the opponent argued that three weeks between having been informed of the contents of auxiliary request I on 13 February 2018 and the oral proceedings on 7 March 2018 had not been a sufficient time to react to auxiliary request I, in particular in view of the complexity of the amendments contained therein. Therefore, the opposition division should have either not admitted auxiliary request I into the proceedings or postponed the oral proceedings. The failure to do neither constituted a violation of their right to be heard under Article 113(1) EPC.
source http://justpatentlaw.blogspot.com/2021/08/t-237118-no-duty-to-monitor-online-file.html
