T 2377/19 - Comparable to a clearly inadmissible appeal

 Key points

• In this opposition appeal, a Notice of appeal was filed including a request for oral proceedings, but no Statement of grounds.
• Similarly as in T 1573/20, the Board finds that " There was no contentious matter on which the appellant had to be heard according to Article 113(1) EPC. Oral proceedings would thus have had no legitimate aim. The situation is therefore comparable to the "clearly inadmissible appeals" considered in decisions G 1/97 and G 2/19. (cf. T 1573/20, point 5 of the reasons). Thus no oral proceedings had to be held." 
• However, as an addition to my blog post about T 1573/20, I would like to note that the Board only says that the situation is " comparable to the "clearly inadmissible appeals" considered in decisions G 1/97 and G 2/19". The Board does not say if the appeal is " clearly inadmissible". So, possibly, oral proceedings can also be dispensed with, even if requested, if the appeal is comparable to a clearly inadmissible appeal.
• It may be asked until when a divisional application can be filed, if the appeal is against a refusal decision (as in T 1573/20), in fact a divisional application was filed in the underlying case in that appeal, pending as EP3685667. The divisional application was filed on 12.03.2020. In that case, the Notice of appeal was filed on 07.01.2020, the decision to refuse was issued 07.11.2019. The reason is that the Board said in G 2/19 that clearly inadmissible appeals, at least of the type at issue in the appeal leading to the referral of G 2/19, have no suspensive effect. The possibility to file divisional applications during the appeal period is not depending on the suspension effect of appeals (G1/09), I am not sure if G 2/19 modifies the holding of J23/13 r.8 that the divisional application can be filed until the expiry of the period for filing the Statement of grounds. The reasoning in J23/13 r 8.3 is not explicitly restricted to appeals against refusals but probable must be understood in that way in view of G2/19 dealing with appeals against grant decisions.
• Note that e.g. recent decision T0574/21 applies the reasoning that the “the request for oral proceedings is deemed withdrawn or superseded by the subsequent failure to react to the Board's communication [regarding the missing Statement of grounds]” in line with T1042/07.

T 2377/19 - 

https://www.epo.org/law-practice/case-law-appeals/recent/t192377eu1.html

Reasons for the Decision

1. No written statement of grounds of appeal was filed within the time limit provided by Article 108, third sentence, EPC in conjunction with Rule 126(2) EPC. In addition, neither the notice of appeal nor any other document filed contains anything that could be regarded as a statement of grounds pursuant to Article 108 EPC and Rule 99(2) EPC.

2. Request for oral proceedings

2.1 The appellant requested oral proceedings should their request not be granted, i.e. in the case that the appeal would be dismissed. In the absence of any submission that could be regarded as a statement of grounds of appeal the issue of dismissal of the appeal was not a subject of the appeal proceedings. There was no request for oral proceedings in the case of a decision concerning the admissibility of the appeal.

2.2 Despite the absolute nature of the right to oral proceedings under Article 116 EPC, the board concluded that oral proceedings were not required in the present circumstances. The board notes that the appellant did not file any observations in reply to the communication of 17 January 2020. In particular, the appellant did not contest the finding there that no statement of grounds of appeal had been received. Therefore, holding oral proceedings would have served no other purpose than confirming the (undisputed) preliminary finding that no statement of grounds of appeal had been filed, and announcing the decision afterwards. There was no contentious matter on which the appellant had to be heard according to Article 113(1) EPC. Oral proceedings would thus have had no legitimate aim. The situation is therefore comparable to the "clearly inadmissible appeals" considered in decisions G 1/97 and G 2/19. (cf. T 1573/20, point 5 of the reasons). Thus no oral proceedings had to be held.

3. Therefore, the appeal has to be rejected as inadmissible (Rule 101(1) EPC).

Order

For these reasons it is decided that:

The appeal is rejected as inadmissible.