T 2473/17 - A long sentence

Key points

• The applicant files a new request in appeal. The Board does not admit it. 
• The Board, in one sentence: “Considering i) that the new main request was filed to overcome the objection of lack of novelty over D1 (i.e. the ground of refusal for the application) and thus cannot be regarded as a reaction to an unexpected development in the proceedings,
  ii) that the added wording "continuously curved" has no explicit basis in the application as filed and, by the Appellant's own admission, can only be derived from the figures, and thus gives rise to issues under Article 123(2) and 84 EPC (in particular, what should be understood by "continuously curved" serpentine: with straight portions or not, with a constant radius of curvature or a variable one , etc.) which would require further discussion, and
  iii) that D1 (figure 2) apparently also shows a serpentine divider having a smooth, continuously curved shape, without cusps or angles introducing discontinuities, i.e. that D1 apparently discloses what can be regarded as a continuously curved serpentine divider (in its broadest interpretation, this term would not exclude straight line portions), whereby the amendment is not such as to prima facie overcome the objection of lack of novelty over D1 in respect of the previous second auxiliary request Version 1, the Board takes the view that, having regard to the current state of the proceedings and for reasons of procedural economy, the new main request is not to be admitted to the appeal proceedings pursuant to Article 13(1) RPBA.” (indents in original). 
• As a comment, drafting a judgement in basically one sentence with a number of "considering" statements is the traditional (and current) French way of drafting judgments, but the EPO normally does not use it..

EPO T 2473/17 -  link

Reasons for the Decision

1. The appeal is admissible.

2. The Appellant's main request was filed during oral proceedings after novelty over D1 was discussed in respect of all pending requests at the beginning of the oral proceedings, after deliberation of the Board, and after the Chairman informed the Appellant that the subject-matter of claim 1 of all requests - including the second auxiliary request Version 1, filed with letter dated 13 September 2019 - lacked novelty in view of D1.

The Appellant filed the new main request in order to address the objection of lack of novelty over D1 by introducing the feature, in claim 1 of the previous second auxiliary request, Version 1, that the serpentine divider was "continuously curved".

According to Article 13(1) RPBA (Rules of Procedure of the Boards of Appeal), the Board has a discretionary power not to admit this request.

Considering

i) that the new main request was filed to overcome the objection of lack of novelty over D1 (i.e. the ground of refusal for the application) and thus cannot be regarded as a reaction to an unexpected development in the proceedings,

ii) that the added wording "continuously curved" has no explicit basis in the application as filed and, by the Appellant's own admission, can only be derived from the figures, and thus gives rise to issues under Article 123(2) and 84 EPC (in particular, what should be understood by "continuously curved" serpentine: with straight portions or not, with a constant radius of curvature or a variable one , etc.) which would require further discussion, and

iii) that D1 (figure 2) apparently also shows a serpentine divider having a smooth, continuously curved shape, without cusps or angles introducing discontinuities, i.e. that D1 apparently discloses what can be regarded as a continuously curved serpentine divider (in its broadest interpretation, this term would not exclude straight line portions), whereby the amendment is not such as to prima facie overcome the objection of lack of novelty over D1 in respect of the previous second auxiliary request Version 1, the Board takes the view that, having regard to the current state of the proceedings and for reasons of procedural economy, the new main request is not to be admitted to the appeal proceedings pursuant to Article 13(1) RPBA.

Order

For these reasons it is decided that:

The appeal is dismissed.