Ads Area

T 0247/20 - What's an amendment of a party's appeal case

 Key points

  • The Board: “The test under Article 13(2) RPBA 2020 is a two-fold one. The first question is whether the submission objected to is an amendment to a party's appeal case. If that question is answered in the negative, then the Board has no discretion not to admit the submission. If, however, that question is answered in the positive, then the Board needs to decide whether there are exceptional circumstances, justified by cogent reasons, why the submission is to be taken into account.”
    • As a comment, Article 13(1) RPBA has the same two-prong test, with the first prong being the same, and with a different threshold in the second prong.
    • For the second prong, see also T 1294/16.
  • The Board, as to the first question - whether the submission is an amendment: “The Board thus concludes that an amendment to a party's appeal case is a submission which is not directed to the requests, facts, objections, arguments and evidence relied on by the party in its [initial appeal submissions. In other words: it goes beyond the framework established therein.”
    • As a comment, this may pertain to the legal and factual framework, with the disclaimer that Article 114 speaks of 'facts and evidence'.
  • “The arguments presented by the appellant during the oral proceedings [...] were all aimed at illustrating, refining or further developing the arguments already presented with the grounds of appeal and to counter the arguments of [the respondent] made in this context. To the extent that additional passages or figures were referred to this merely served that purpose. The Board notes that no additional pieces of evidence were introduced and that the patent as well as D1 are very concise documents. The Board takes the view that the arguments [at issue] do not amount to an amendment of the appellant's appeal case.”
  • “The above approach takes account of the fact that oral proceedings form an important part of proceedings before the Boards of Appeal. [...] Oral proceedings would serve no purpose if the parties were limited to present a mere repetition of the arguments put forward in writing. Instead, parties must be allowed to refine their arguments, even to build on them provided they stay within the framework of the arguments, and of course the evidence, submitted in a timely fashion in the written proceedings.”
    • This analysis probably applies equally to any written submissions filed after the notification of the summons and prior to the oral proceedings before the Board.


T 0247/20 -

https://www.epo.org/law-practice/case-law-appeals/recent/t200247eu1.html




Reasons for the Decision

1. Admittance of D30, D31 and alleged amendment of the appellant's case

1.1 The respondents regard D30 - filed by the appellant with letter dated 25 January 2021 - as new evidence which should not be admitted into the proceedings under Article 13(2) RPBA 2020.

D30 contains figures which illustrate the appellant's interpretation of the production processes of the collecting bags of the patent and D1. Similar illustrations are often made on flip charts in oral proceedings in situ in order to clarify arguments which may be difficult to formulate in words. The figures are not regarded as evidence, or a change of the appellant's appeal case, but as supportive information of the appellant's oral presentation, albeit filed in advance of the oral proceedings. They were thus part of the appeal proceedings and the Board had no discretion not to admit them pursuant to Article 13(2) RPBA 2020.



source http://justpatentlaw.blogspot.com/2021/06/t-024720-whats-amendment-of-partys.html
Tags

Post a Comment

0 Comments
* Please Don't Spam Here. All the Comments are Reviewed by Admin.

Top Post Ad