Key points
- The patentee files AR 3-6 with the statement of grounds on 22.03.2019. The opponent requests that they are held inadmissible.
- "Auxiliary requests 3,4,5 and 6 correspond to the like numbered auxiliary requests filed shortly before the oral proceedings in opposition but which were not examined."
- "The Board can see no reason why these requests that were re-filed in appeal should not be admitted under the applicable rules of procedure, Article 12(4) 2007."
- " the Board in exercising its discretion refrained from not admitting these requests into the proceedings, Article 12(4) RPBA 2007."
- The Board's reasoning is a bit remarkable because Article 12(4) RPBA 2007 states: "Without prejudice to the power of the Board to hold inadmissible facts, evidence or requests which could have been presented or were not admitted in the first instance proceedings, everything presented by the parties under (1) [including the Statement of ground] shall be taken into account by the Board if and to the extent it relates to the case under appeal and meets the requirements in (2).".
- There is no dispute that the requirements of Art. 12(2) RPBA 2007 were met.
- This means that only the the power of the Board to hold inadmissible facts, evidence or requests which could have been presented or were not admitted in the first instance proceedings" can be at play.
- However, the requests were actually submitted before the OD, and they were not held inadmissible by the OD (the OD did not arrive at them, finding AR-2 to be allowable).
- Clearly this is different under new Art. 12(4) RPBA 2020.
EPO T 0184/19
The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.
source http://justpatentlaw.blogspot.com/2022/04/t-018419-art-124-rpba-2007-vs-2020.html
