T 1459/11 - Written submissions

T 1459/11
For the decision, click here. [C] (online  19.10.2015) 

Headnote

The purpose of the communication of a board of appeal pursuant to Art. 15(1) RPBA is to prepare the oral proceedings; it is not an invitation to the parties to make further submissions or to file further requests (See Reasons 3.1-3.3)

Reasons for the Decision

3. First auxiliary request

3.1 Admissibility

According to the appellant this request should be admitted to the proceedings because it had been filed "in response" to the communication pursuant to Art. 15 RPBA issued by the Board in preparation of the oral proceedings.

3.2 According to Art. 15(1) RPBA the purpose of the communication is to draw attention to matters "which seem to be of special significance....or containing other observations that may help concentration on essentials during the oral proceedings" (emphasis of the Board).

The purpose of the communication is thus - explicitly -to establish the framework of the oral proceedings. The communication does not - explicitly or implicitly - represent an invitation or opportunity to file further written submissions or to shift the focus of the case to be heard at oral proceedings, it being recalled that the terms of the appeal are determined by the statement of grounds of the appeal and the reply thereto (Art. 12(2) RPBA).

3.3 Consequently there is no legal basis in either the EPC or the RPBA for the filing of a "response" to a communication pursuant to Art. 15 RPBA. This means that a Board is under no obligation to take such a "response" into account. Furthermore in view of the purpose of the communication pursuant to Art. 15 RPBA the argument that a "response" to the communication cannot be regarded as late filed, is moot. Any submissions - either arguments or requests - contained in such a "response" that go beyond those contained in the statement of grounds of appeal or the reply thereto may constitute an amendment to the case presented, and it is a matter for the discretion of the Board whether such submissions are to be taken into account (Art. 13(1) RPBA).