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T 0716/17 - Reordering requests inadmissible

 Key points

  • In this opposition appeal, “ the patent proprietors substantially re-ordered their pending requests several times. This resulted in a repeated change of the subject-matter to be discussed, since the auxiliary requests selected by the patent proprietors related to a variety of different and diverging attempts to find allowable subject-matter”.
  • However, can the Board hold this reordering inadmissible? Nothing new is filed by reordering requests. 
  • Yes they can. The Board: “as follows from the above discussion, the re-ordering of pending requests carried out by the proprietors amounts to an amendment of the case, which needs to be justified according to Article 13(2) RPBA 2020. However, no special circumstances for such amendments, in the sense of Article 13(2) RPBA 2020, have been justified with cogent reasons by the patent proprietors”.
  • I'm not sure what part of the preceding paragraphs in the decision forms the ‘above discussions’. However, the Board noted that “As a consequence [of the reordering], during the oral proceedings it became more and more difficult for the opponent and the board to follow what the patent proprietors were attempting to achieve. ”
  • Not only the reordering is inadmissible, also the requests at issue. The patent is revoked. 

T 0716/17 -




9. First to third, fifth, new sixth, ninth and tenth auxiliary requests - admittance


During the oral proceedings the patent proprietors substantially re-ordered their pending requests several times. This resulted in a repeated change of the subject-matter to be discussed, since the auxiliary requests selected by the patent proprietors related to a variety of different and diverging attempts to find allowable subject-matter.

source http://justpatentlaw.blogspot.com/2021/06/t-071617-reordering-requests.html
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