T 0847/20 - Late-filed-objection is late filed

 Key points

• In an unsurprising move, the Board clarifies that an objection against the admissibility of a submission of another party can be late filed and inadmissible in turn under Article 13(2). This implies that such an objection is also an amendment of the party's appeal case. 
• “It is only during oral proceedings that the respondent requested the non-admittance of auxiliary request 2.”
• “In the absence of valid reasons to raise this objection during oral proceedings, the Board finds it appropriate to exercise its discretion under Article 13(2) RPBA 2020 by not admitting the present objection into the proceedings.”
• As a comment, case law will probably in due course require that admissibility objections are timely, specific, and reasoned, without limiting the power of the Boards to hold submissions inadmissible ex officio. 

T 0847/20 - 

https://www.epo.org/law-practice/case-law-appeals/recent/t200847eu1.html

3. Auxiliary request 2

3.1 Admittance

Auxiliary request 2 was submitted with the statement of grounds of appeal. The admittance of this request into the proceedings was not challenged by the respondent in their reply to the statement of grounds of appeal and it was not an issue that was raised by the Board in their preliminary opinion on the case either. It is only during oral proceedings that the respondent requested the non-admittance of auxiliary request 2.

In particular the respondent submitted that auxiliary request 2 was a new request having no counterpart in the opposition proceedings and that the amendments raised new issues.

The Board notes that the appellant had made clear from the beginning of the appeal proceedings that auxiliary request 2 was formally a new request (see statement of grounds of appeal, page 22, second paragraph) by specifying that it corresponded to auxiliary request 7 in opposition in which additionally the same amendments introduced in claim 1 had been inserted in claims 2 and 7. This situation did not change in the course of the appeal proceedings.

Consequently, the objection against its admittance should have been raised with the rejoinder of respondent and not at the latest possible point in time of the appeal proceedings.

In the absence of valid reasons to raise this objection during oral proceedings, the Board finds it appropriate to exercise its discretion under Article 13(2) RPBA 2020 by not admitting the present objection into the proceedings.