Key points
- The applicant appeals against the refusal of the patent application. The Board concludes that: " the amendments to the claims of the main request clearly overcome the sole objection raised by the examining division against claims 1 and 6 of auxiliary request 2 on which the decision under appeal was based."
- The Board concludes that the ED should have granted interlocutory revision: "An appeal is to be considered well founded within the meaning of Article 109(1) EPC if the main request submitted with the appeal includes amendments which clearly overcome the objections on which the decision relies, such that the examining division could reasonably be expected to recognise this and thus rectify its decision. Other objections which may arise in the main request but which were not the subject of the contested decision cannot preclude the application of Article 109(1) EPC".
- Note that admissibility under Art.12 RPBA is not mentioned as a factor for Art.109 EPC. See T 0682/22.
- " In view of the board's findings in point 2. above, the examining division could reasonably have been expected to recognise that the amendments made to the claims of the current main request overcame the sole ground for refusing then auxiliary request 2, and should have rectified its decision."
- The Board does not conclude that this is a substantial procedural violation. This conclusion aligns with T 1060/13 and T 0682/22.
- The Board remits the case and refunds the appeal fee at 25% because the request for oral proceedings was withdrawn in time (the withdrawal was conditional on the remittal).
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/2023/10/t-228519-interlocutory-revision.html
