Key points
- The appealing opponent argued lack of novelty over D3 in the statement of grounds. The opponent presented an inventive step attack based on D3 one month before the oral proceedings. The attack is not admitted.
- The Board, in the headnote: "Regarding the need for a timely [rejoinder of the appellant]:
- 1. Under the Rules of Procedure of the Boards of Appeal (RPBA 2020), which have been in force since January 1, 2020, it is the responsibility of the parties to submit their submissions in the proceedings in good time so that the Board of Appeals can already take them into account when drafting the summons.
- 2. To the extent that the appellant cannot already submit a part of its submission in the statement of grounds of appeal, as Article 12(3) RPBA 2020 actually requires, because it is a response to attacks or auxiliary requests that are not already the subject of the contested decision but are submitted by the Respondent in the [appeal reply brief], a [rejoinder] is the appropriate means of choice for the Appellant to submit its response in good time. Precisely for this reason, Article 15(1) RPBA 2020 provides that the board shall endeavor to send the summons no sooner than two months after receipt of the reply to the appeal (according to Article 12(1) c) RPBA 2020).
- 3. The argument that it is unreasonable to have to present a cascade of lines of argument with regard to every conceivable assessment by the Board does not apply. In an inter partes appeal procedure, the parties have the duty to conduct the procedure carefully and expediently, for reasons of fairness towards the other party, but also in order to bring the procedure to a conclusion within a reasonable period of time. Article 13 (2) RPBA 2020 sanctions this obligation to promote proceedings.
- 4. The appellant's argument that it is reasonable for the board and the patent proprietor to deal with the discussion of a simple new matter during the oral proceedings ignores the influence on the further course of the proceedings. Discussing a line of argument for the first time at the oral hearing may lead to a situation in which the other party has to reconsider and, if necessary, adjust its line of defense for the first time at the oral hearing, leading to a significant delay in the procedure and to appropriate decision making at the hearing becoming difficult or impossible."
EPO T 2843/19
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/2022/05/t-284319-on-rejoinder.html
