Key points
- The applicant appeals against the refusal.
- On the admissibility of the amended claims: "As explained by the appellant in the statement of grounds of appeal, the amendments made in the new main request filed on appeal clearly address the objection of added subject-matter raised by the examining division, for the first time, in the decision under appeal." emphasis added.
- The amendments overcome the objections under Art. 123(2).
- The Board " points out that, in such circumstances, the examining division should have considered the appeal admissible and well founded and, consequently, should have rectified the decision under Article 109(1) EPC. "
- The case is remitted.
- The appeal fee is not reimbursed (or more precisely: there is no order to do so in the decision).
- If the ED raises new objections "for the first time in the decision under appeal" this is a violation of the right to be heard, and the appeal fee is (normally) reimbursed under Rule 103(1)(a) EPC ex officio.
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/t-159820-new-objections-in-decision.html
