Highlights EPO Case Law 2019

2019 was quite a busy year for the Boards of Appeal. A selection of the highlights:

• G1/18: If the appeal fee is paid late, the appeal is deemed not to have been filed.
• G2/19: Oral proceedings can take place in Haar. Moreover, appeals of third parties (in the sense of Article 115) can be dismissed without oral proceedings. Such appeals have no suspension effect.
  As a comment, I think there is more to say about these two decisions (e.g. they were probably mostly concerned with ensuring that the filing of divisional applications post-grant is impossible), but I'm still waiting for the English translation in the OJ.
• T1063/18 (written decision) Rule 28(2) EPC (about plants obtained with essentially biological methods) is in conflict with Article 53(b) EPC. Pending referral G3/19 of the President challenges this holding.
• T1085/13: A purity-level feature can provide novelty to a claim directed to a small molecule. Older case law is held obsolete in view of the 'gold standard' of G2/10. The same happened to the test for novelty of sub-ranges in the GL (see also this article of Derk Visser and this article of Roel van Woudenberg) and the "essentiality test" (see e.g. T1189/16 and T 85/16; GL 2018).
• T1360/13: this patent was revoked because the formal drawings filed during prosecution resulted in an inescapable trap. Again G2/10 requires reconsideration of established practice. Note the Board's view that generally “after grant, any information in the description and/or drawings of a patent directly related to a feature of a claim and potentially restricting its interpretation cannot be removed from the patent without infringing Article 123(3) EPC.”
• T54/17: Interruption of proceedings (R.142) is restricted by the principle of good faith. Similarly to G2/19, a rule in the EPC that appears rather absolute based on its wording is held to be not without exception.
• T2707/16 and T2377/17: The severe delays in the proceedings are a substantial procedural violation. This (in my view) rather unavoidable development of the case law (in view of the ECHR) took place this year. 
• T237/15: Determining optimum dosage regiment is a matter of routine experimentation. I expect that this decision will have great practical impact in the pharma field. Moreover, is the Board perhaps raising the bar for second medical use claims?
• T1904/14, T1304/18,  T23132/14 and T1979/13: In appeals against refusals, applicants must carefully address each and every ground of refusal in the Statement of grounds. Otherwise, the appeal is inadmissible (so no repairing the deficiency during the appeal). So, as an example, your extensive arguments that claim 1 is novel and inventive, do not help if you forget to address the clarity objection against dependent claim 7.
• If you file a request for restoration of priority upon entry of the European phase, don't forget to pay the fee - there is no remedy available if you forget (J8/18; J1/19).
• The principle of good faith still applies to payments made with debit orders (T703/19). Hence, the EPO should have informed the payer that the debit order was invalid and the payer is protected against the EPO's failure to do so (G2/97). This decision, in particular, confirms that the ADA are not completely outside the general procedural case law of the Boards. See also T0317/19
• In the category "puzzles rather than highlights", T683/14 wherein the Board held that “[t]he appeal was not remitted and has thus never been pending before the board”. The Board still decides that “[t]he requests for reimbursement of the appeal fee are refused.”

The above list is based on decisions published online in 2019 (backfile online publications excluded).
Edit 07.01.2019 to add "in my view".