Key points
- The Board does not admit an inventive step attack of the opponent as appellant.
- The attack was included in the Notice of opposition and was very briefly indicated in one sentence in the Statement of grounds.
- " The appellant submitted that it had made a reference in the statement of grounds of appeal to the contents of its notice of opposition. It had even attached the notice of opposition to the statement of grounds of appeal, thereby allegedly incorporating it.
- " As a rule, in appeal proceedings, general references to submissions made in the proceedings before the departments of first instance are not taken into account due to a lack of substantiation (T 972/14, Reasons 7; see also T 1744/14, Reasons 4.4, T 1727/15, Reasons 2.9 and T 460/19, Reasons 2). Otherwise, it would be left to the Board and the other party to determine which parts of such submissions are relevant to which parts of the decision under appeal or the arguments of the other party.
- " Attaching the notice of opposition to the statement of grounds of appeal is to be considered equivalent to such a general reference to previous submissions. It does not make a mere general reference in the statement of grounds of appeal to previous submissions more specific either. Evidently, the notice of opposition cannot take account of the decision of the opposition division, which was only taken afterwards."
- " In its submission dated 13 April 2022, which was only filed after notification of the summons and the Board's preliminary opinion under Article 15(1) RPBA 2020, the appellant provided detailed reasoning for the inventive-step objection starting from document E5/E15. '
- " an objection becomes effective - and is thus to be considered to have been validly submitted for the first time - only when sufficient substantiation is provided (for unsubstantiated requests, see T 1732/10, Reasons 1.5 and T 2393/18, Reasons 4.2). In the present case, this was done with the submission dated 13 April 2022. "
- " The late filing of the objection starting from document E5/E15 was not justified by the appellant with cogent reasons, and the Board is not aware of any exceptional circumstances in this regard either."
EPO T 2117/18
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-211718-attaching-notice-of-opposition.html
