Key points
- In this petition for review case, the Board did not admit evidence of a public prior use that was filed in appeal under the "could have been filed" prong of Art. 12(4) RPBA 2007 (now Art. 12(6) second sentence RPBA). The opponent/petitioner argues, essentially, that Art.12(4) RPBA violates Art. 113(2) EPC and Article 114(2) EPC (as I understand it).
- The Enlarged Board reviews the preparatory documents of the predecessor of Art.12(4) RPBA 2007, namely Article 10a(4) RPBA 2003.
- " Article 12(4) RPBA 2007 setting a lower threshold for non-admittance regarding a party's conduct in the prosecution than abuse of process that the petitioner suggested is in line with Articles 114(1) and 113(1) EPC. "
- The Enlarged Board does not expressly recall that "could have been filed" in Art. 12(4) RPBA is interpreted as "should have been filed in the first instance proceedings". However, understood in that way, general compliance with Art.113(1) EPC and Article 114(2) EPC seems to be a given, especially when adding the clause, as is present in current Art.12(6), " unless the circumstances of the appeal case justify their admittance".
EPO
The link to the decision is provided after the jump, as well as (an extract of) the decision text.
source http://justpatentlaw.blogspot.com/2023/11/r-000620-ii-art-124-rpba-2007.html
