Key points
- In my blog post about T1657/14 (06.05.2020) I wrote: "this suggests that for opponents, there is no amendment of a party's case if they adopt arguments or attacks of the other opponents. Indeed, Article 12(4)(§1)(s.1) does not require that the 'part' was (admissibly) raised and maintained by the opponent itself in the first instance proceedings."
- The present Board in the headnote in translation: "Article 12(4) RPBA 2020 does not contain any restriction to the effect that each party in the appeal may only refer to those matters of the preliminary proceedings which they themselves "admissibly presented" there. It therefore seems legitimate to also refer to lines of attack that had been introduced into the opposition proceedings by other parties. If this happens, there is no change in the submission that requires admissibility ["keine zulassungsbedürftige Änderung des Vorbringens"]
- I note that at least one tutor advocated the converse position in a course that I attended a few years ago.
- The Board, in translation, in the reason: " With regard to the other part of the line of attack, namely the impermissible generalization objected to by only picking out the "form teeth" and omitting all other teeth in claim 1, the opposition division had made no decision, so that Article 12(2) RPBA does not apply directly. However, there is also no change in the submission that requires admission, since the appellant (opponent 1) was able to show that this part of the line of attack from point 3.5 of its statement of grounds of appeal had already been "submitted in a permissible manner" in the opposition proceedings under Article 12(4) RPBA namely by Opponent 2 in its notice of opposition (see above). The Board cannot derive any restriction from Article 12(4) RPBA that each party may only refer to those matters of the preliminary proceedings in the appeal which it itself has introduced there in a permissible manner. It therefore seems legitimate for the appellant to also refer to lines of attack introduced by other opponents in the opposition proceedings."
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/2022/08/t-092020-attacks-are-not-personal.html
