T 1835/11 - Appeal with no name

EPO T 1835/11

For the decision, click here. [C] (online on 20.10.2015)

Key points

• Even if a Notice of appeal does not contain the name and the address of the appellant, the appeal can be admissible, if it is filed by the representative of an opponent (based on G 1/12). 

Reasons for the Decision

1. In their reply of 22 February 2012 to the grounds of appeal the respondent objected that the notice of appeal did not comply with the requirements of Article 108 EPC in combination with Rule 99(1)(a) EPC because it did not contain the name and address of the appellant. For the purpose of Rule 99(1)(a) EPC it is necessary that the identity of the true appellant, i.e. the person on whose behalf the appeal was actually filed, can be established on the basis of the information given in the notice of appeal (G 1/12, OJ EPO 2014, A114, Reasons for the Decision, Nos. 20 to 23). As the notice of appeal was filed by the representatives of opponent 2 in the first instance, and opponent 2 was a party adversely affected by the decision under appeal, it was possible to identify the appellant as opponent 2. The appeal is therefore admissible.

2. The appellant has withdrawn their request for oral proceedings. The present decision is in accordance with the respondent's main request, so that their auxiliary request for oral proceedings does not need to be taken into account. Therefore the case can be decided without the need to hold oral proceedings.

3. In the grounds of appeal the appellant introduced new prior art in the form of an alleged public prior use, evidence for which was contained in the three documents, labelled Anlage/Exhibit MHP1, MHP2 and MHP3, which were filed with those grounds. The appellant has not however provided any reasons as to why this prior art was not introduced earlier, in which context the respondent has correctly observed that the claims had not been amended in substance since the reply [] to the opposition grounds (the amendments to the claims filed during the oral proceedings before the opposition division consisted only of deletion of reference signs). Moreover, as indicated in the grounds of appeal, the alleged prior use concerns sales of the appellant's own products, so that it must be assumed that they have not only recently become aware of it. The board therefore agrees with the respondent that the appellant should have been able to introduce this prior art during the procedure before the opposition division. The board therefore decided that it was appropriate to exercise its discretion under Article 12(4) of the Rules of Procedure of the Boards of Appeal to not admit this prior art in to the proceedings.

4. The appellant argues that the subject-matter of the independent claim 1 which was the subject of the decision under appeal does not involve an inventive step according to Article 56 EPC. The board does not find this argument convincing for the following reasons.

4.1 Document E6, like the present claim 1, relates to a connecting box (junction box 4) for a solar panel (5), as depicted in figures 1 and 2 and described in column 2, lines 4 to 54 of that document. According to the appellant the introduction of the contacts (terminals 40) of E6 into the tapered ends of the contact elements (terminals 72) can be read onto feature [1g] of the present claim. However, according to feature [1c] of the claim, these contacts are those of the solar panel, and thus correspond to the tabs (6) of E6. In contrast, E6 describes at column 2, lines 55 to 61, referring to figure 2, that the terminals 40 are fixed within the receptacles 20 of the connecting box, so that they cannot be considered as being the contacts of the solar panel. Thus the contacts (tabs 6) of the solar panel in E6 contact with the terminals 40, and the manner in which this occurs is not an automatic introduction as defined in feature [1g] of the claim.

4.2 Thus feature [1g] is not disclosed in E6, so that the appellant's objection of lack of inventive step with respect to that document fails, since no further arguments have been presented as to why that feature might have been obvious to the skilled person. The board therefore concludes that the subject-matter of claim 1 according to the appellant's main request involves an inventive step in the light of E6. As a consequence, it is not necessary to consider whether or not feature [1j] would have been obvious.

5. Given the above, and given that the appellant has raised no further objections during the appeal procedure, the board has to accede to the respondent's request to dismiss the appeal. It was therefore not necessary to consider the respondent's auxiliary requests.

Order

For these reasons it is decided that:

The appeal is dismissed