Key points
- The Board holds amended claims inadmissible under Art.13(2) RPBA.
- The Board: "The allegedly high number of objections is also not a reason to justify the late filing of requests, because such circumstance is by no means exceptional."
- As a comment, Art.13(2) does not require that the filing of the appeal case amendment is justified by exceptional circumstances. Art. 13(2) RPBA in the English version reads "shall, in principle, not be taken into account, unless there are exceptional circumstances, which have been justified with cogent reasons by the party concerned". The English version merely requires that there are exceptional circumstances, without expressly requiring any link between those circumstances and the filed case amendments
- Of course, the Board in the present case does not say that the invoked exceptional circumstances do not justify the late filing. The Board says that the filing is not justified by the circumstances, because the circumstances are not exceptional. In other words, whether or not the circumstances are frequent or rare, is equated to whether they can be used to justify the filing of the amendments.
- cf. T 2703/16 which held that the fact that the applicant’s place of business was heavily affected by the Covid-19 pandemic in spring 2020, was not an ‘exceptional circumstance’ in the sense of the provision.
- Generally, the concept of what is justified in an individual case, seems rather distinct from statistics. For example, whether or not amended claims are admitted in a particular case, should not depend on how often the Boards raise new objections in their preliminary opinion.
- The Board, additionally: "In fact, the circumstances cited by the proprietor appear to describe a fairly normal course of events. In particular, it is common for the parties and the board to go deeper into certain aspects of a given objection during the discussion at the oral proceedings, as this is one of the main purposes of the oral hearing. It is also not uncommon for the board to modify its preliminary opinion in view of the details discussed or the questions raised during the oral proceedings. "
- The requests at issue were filed at the oral proceedings before the Board.
EPO
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/2022/05/t-002418-high-number-of-objections.html
