T 1634/11 - Filing amended claims before OP

Key points

• The Board recalls that it is established case law that if an applicant files amended claims after the Summons / Article 15(1) RPBA Communication, and then does not attend oral proceedings, the applicant is treated as relying only on its written submissions. The new request is held inadmissible.
• As a comment, the sole request is hence not admitted for reasons that the applicant learns about only in the decision. This does not contravene the right to be heard of Article 113 EPC, because " that Article only affords the opportunity to be heard and, by absenting itself from the oral proceedings, a party gives up that opportunity" (see CLB IV.E.4.2.6 d citing CA/133/02).

T 1634/11 - link

3. According to established case law (cf. Case Law of the Boards of Appeal of the European Patent Office, 8th edition, July 2016, section IV.E.4.2.6 d), "Applicant (proprietor) absent from oral proceedings", pages 1137-1138) that an appellant filing amended claims in response to a Board's communication under Art. 15(1) RPBA has to expect that the admissibility of the newly filed claims will be considered during forthcoming oral proceedings.

For this reason, in the present case, the appellant refraining from participating at the oral proceedings de facto renounced to submit its comments orally, if any. In accordance with the provisions of Art. 15(3) RPBA, the appellant was then treated as relying only on its written submissions.

Since the new sole main request was not admitted into the proceedings and all previous requests had been withdrawn, there were no further requests on file, so that the appeal had to be dismissed.

Order

For these reasons it is decided that:

1. The appeal is dismissed.