T 1897/16 - The proprietor may strongly disagree

 Key points

• The board, when deciding on the admissibility of an auxiliary request filed during the oral proceedings before the Board under Art.13(2) RPBA 2020: “The representative of the proprietor expressed the view that the conclusion of the Board with respect to auxiliary requests 2 and 3 was surprising and shocking for a physicist. However, the conclusion was reached after an exchange of arguments between the parties. In the end the Board found the arguments of the opponent to be more convincing. The proprietor may strongly disagree with the Board, but that is not an exceptional circumstance either.”

T 1897/16 -

https://www.epo.org/law-practice/case-law-appeals/recent/t161897eu1.html

The representative of the proprietor expressed the view that the conclusion of the Board with respect to auxiliary requests 2 and 3 was surprising and shocking for a physicist. However, the conclusion was reached after an exchange of arguments between the parties. In the end the Board found the arguments of the opponent to be more convincing. The proprietor may strongly disagree with the Board, but that is not an exceptional circumstance either.

The technical problems at the beginning of the oral proceedings referred to by the proprietor essentially concerned the provision of the English interpretation channel and were solved immediately after they had been notified to the Board and before continuing the oral proceedings. No further technical problems occurred in the course of the rest of the oral proceedings. The proprietor has furthermore not explained how the alleged technical shortcomings could be causal for the need to file auxiliary request 4 only at the end of the oral proceedings rather than at an earlier stage of the appeal proceedings. The Board also notes that the proprietor only mentioned the alleged technical shortcomings after all the auxiliary requests on file had been discussed. Neither before the oral proceedings (which were also requested by the proprietor) nor during the discussions, the proprietor expressed concerns with using video-conference technology for conducting oral proceedings, including the use of a headset in order to facilitate the work of the interpreters.

Therefore, the Board does not consider these technical problems as exceptional circumstances within the meaning of Article 13(2) RPBA 2020, either.

Consequently, the Board decided that auxiliary request 4 was not to be taken into account under Article 13(2) RPBA 2020.