T 0196/13 - Late filed response

Key points

• The Board had refused the respondent's request for extension of the time limit for filing its response to the statement of grounds of the appellant. The Respondent thereupon submitted a full response to the statement of grounds of appeal one week after the expiry of the time limit. Is this response admissible?
• The Board decides it is, because a formal response had been submitted the day after the refusal of the extension, and the complete response was submitted only a week later.

T 0196/13 - link

Reasons for the Decision

Admissibility of the Respondent's reply to the statement setting out the grounds of appeal

1. In the present case, the Board, considering the lack of a sufficient justification, took the discretionary decision not to grant the Respondent's request for an extension of the time limit set for replying to the statement of grounds of appeal (Article 12(5) RPBA).

The Respondent thereupon submitted a full response to the statement of grounds of appeal one week after the expiry of the said time limit.

1.1 The admission of late submissions is, in any case, subject to the discretion of the Board (Article 114(2) EPC, Article 12(4) RPBA). In the exercise of this discretion the Board took into account that:

- there was a prompt reaction (fax sent on 22 August 2013) of the Respondent to the refusal (by fax of 21 August 2013) of the time extension request by the Board, comprising an explanation for the non-observance of the time limit and, inter alia, requests for the dismissal of the appeal and also, auxiliarily, for oral proceedings; and,

- within one week, with letter of 26 August 2013, the Respondent submitted a complete response, including arguments rebutting the objections maintained/raised by the Appellant, objections against the new evidence filed by the Appellant, and claim requests corresponding to those that had been pending before the Opposition Division.

1.2 Considering the explanations provided and the promptness of the Respondent reaction, the Board, on the one hand, is convinced that there was no intention by the Respondent to slow down the proceedings. The Board also considered that the Respondent's reply was submitted at a very early stage of the appeal proceedings, and that it essentially merely comprised arguments in defence of the patent against the objections raised by the Appellant, questions regarding the admissibility of the newly filed evidence and (re-filed) claim requests that had already been pending before the first instance.

1.3 Taking into account all of the above aspects, the Board decides to admit the full response of the Respondent into the proceedings (Article 114(2) EPC and Article 12 RPBA) despite it being filed after the expiry of the relevant time limit, as foreshadowed in its communication of 11 February 2016.