Key points
- The patentee complains that the Board did not admit an auxiliary request under Art. 13(2) RPBA. The Board, on the relation between Art. 13(2) RPBA and Art. 113(1) EPC, in translation: “Article 13 (2) RPBA 2020 does not contradict the parties' right to be heard enshrined in Article 113 (1) EPC, even if the modified submissions of a party in the appeal proceedings are not taken into account. With this provision in the Rules of Procedure of the Boards of Appeal, the legislature has made it clear that a submission in appeal by a party who does not fulfill his obligation to promote the proceedings can be wholly or partially disregarded at a later stage in the proceedings. Article 13 (2) RPBA 2020 does not limit a participant's right to be heard. According to Article 113 (1) EPC, a party must in any case be given an appropriate opportunity to bring his case before him. Therefore, Article 13 (2) RPBA 2020 also provides that if there are exceptional circumstances, such as a new objection raised for the first time in the communication of the Board or in the oral proceedings before the Board, the strict approach of this provision is not adhered to should be. However, the party involved must not have failed to use the opportunity given to them to make a statement as early as possible for reasons for which the party is responsible.
- “In addition, the parties involved in inter partes proceedings should be given the opportunity to make statements under comparable conditions. The admission of subsequent case amendments of a party must therefore not lead to the other side being surprised or disadvantaged in their right to comment, for example because they can only insufficiently exercise this right in the time available (see also Article 13 (3) RPBA 2020).”
- As a comment, the opportunity to comment is not necessarily given only after the Board decides to admit the submission. Rather, parties are supposed to reply on the merits prior to the Board deciding on the admissibility, as the present decision in fact also illustrates (patentee should have filed the auxiliary request before the Board decided on the new Art. 123(2) attack submitted by the opponent with the Statement of grounds).
EPO
Link to the decision after the jump, as well as an extract of the decision text.
source http://justpatentlaw.blogspot.com/2022/01/t-178616-art-132-rpba-and-art-1131.html
