T 2189/14 - Something you can do late

Key points

• " A party may, at any time, argue against the other party's case by engaging with that party's arguments, for example by finding flaws in the logic. In the present case however, the respondent's submissions go far beyond that. they constitute a fresh case, and are clearly late." (emphasis added).  

EPO T 2189/14 -  link

Reasons for the Decision

1. In the course of the oral proceedings, the respondent argued that feature A - one of the differentiating features between the invention and D2 - had the technical effect that the gears could be used as part of a modular system. The appellant submitted that this line of argument should not be admitted into the proceedings, as it amounted to a fresh case, was made far too late in the proceedings and the appellant did not have sufficient time to prepare a counter-argument.

The respondent did not make any written submissions in the appeal proceedings which had commenced in November 2014. This has the procedural consequence that the appeal proceedings are based only on the notice of appeal, the statement of grounds of appeal and the Board's communication (Art. 12(1) RPBA).

For the first time at the oral proceedings, the respondent presented a line of argument as to the technical effect of an alleged distinguishing feature between the invention and the prior art; by doing so they effectively presented their own case as an alternative to the appellant's. A party may, at any time, argue against the other party's case by engaging with that party's arguments, for example by finding flaws in the logic. In the present case however, the respondent's submissions go far beyond that. they constitute a fresh case, and are clearly late.

The Board sees no justification for admitting them into the proceedings. The respondent gave no reasons as to why it had presented its case only at the oral proceedings before the Board. The appellant had no time to consider the line of argument and considering it solely during an interruption of the oral proceedings appears in the circumstances insufficient. Therefore, the Board decided not to admit the respondent's line of argument into the proceedings.