T 0333/18 - Admissibility requests

Key points

• In this examination appeal, the Board had to decide on the admissibility of auxiliary requests filed in response to the Board's communication.
• The Board considers the amendments to introduce prima facie a lack of clarity. 
• However, the Board then notes that: " the appellant argues that the requests were filed in reaction to objections raised by the board in its communication. However, this circumstance alone does not mean that a request filed in accordance with Article 13(1) RPBA has to be admitted (indeed, Article 13(1) RPBA makes no mention of any such criterion)." 
• I wonder if the Board really means that the appellant does not have a right by filing a request (and having that request admitted) in case of new objections by the Board. In the end, Article 13(1) RPBA must yield to Article 113(1) EPC. However, the Board, in any case, finds that the same objection had been raised before by the Examining Division, so the point is moot. 
• The timeline of the case is quite interesting. Entry into the European phase in 2010, supplementary ESR in 2015, first Communication also in 2015, summons in 2017, refusal decision 13.07.2017 issued in writing. Notice of appeal filed 11.09.2017; Statement of grounds filed 6.11.2017. Forwarding of the appeal by the Examining Division on 30.01.2018 (EPO Form 2701; signed by the 3 members of the Examining Division) (hence, no interlocutory revision under Article 109).  Which gives the appeal number ending with /18. Summons Board: 12.07.2018. Oral proceedings held on 24.01.2019 so within 1 year from receipt of the appeal. 

EPO T 0333/18 -  link

2. Auxiliary requests 1 to 3 - admissibility

2.1 These requests were filed in response to the board's communication. In accordance with Article 13(1) RPBA, whether or not they are taken into consideration is at the discretion of the board. In accordance with case law, a well-established criterion for determining whether to consider late-filed requests is whether or not they are prima facie allowable.

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Consequently, by defining that optimisation occurs after each increase or decrease in the setting value, prima facie a lack of clarity has been introduced.

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2.4 With respect to admissibility, the appellant argues that the requests were filed in reaction to objections raised by the board in its communication. However, this circumstance alone does not mean that a request filed in accordance with Article 13(1) RPBA has to be admitted (indeed, Article 13(1) RPBA makes no mention of any such criterion). Furthermore, in its decision (point 6), the examining division already noted a lack of clarity in claim 1 in respect of the wording "an optimization cycle that when complete begins another cycle optimizing said selected power transfer parameter until the next power transfer parameter is selected for optimization". Hence, amendments which re-define or clarify the concept of "optimisation" could have been submitted earlier, in particular with the filing of the statement of grounds of appeal. The appellant's argument is therefore unconvincing.