T 1381/15 - Fact vs. argument

Key points

• In this opposition appeal, the opponent submits a new attack of insufficient disclosure late in the appeal proceedings. The newly raised insufficient disclosure attack is "based on the alleged discrepancies between the present application and the priority documents".
• The Board: "According to the headnote of T 1914/12, the boards of appeal do not have any discretion as to the admissibility of arguments submitted late which are based on facts already in the proceedings. However, the board does not consider the specific objection raised by opponent 2 an argument based on facts already in the proceedings."
• The Board: "Firstly, this objection relies on pieces of evidence (the first and the second priority document) which had not been discussed in the context of sufficiency of disclosure.
• Secondly, the facts relied upon by opponent 2, namely, the stability of the fat droplets and the contribution of the polar lipids to this effect, had not been mentioned on appeal, let alone in the context of sufficiency of disclosure.
• In summary, in the present case, the board identifies a bundle of new (pieces of) evidence and new (allegations of) facts which are used to formulate a new objection (a new attack).
• The newly raised objection [...] is therefore not a mere argument which can be made at any time. Thus, its admission into the proceedings is subject to the board's discretion.
• In view of the extremely late state of the proceedings and the complexity of the new objection, the board exercised its discretion under Article 13(1) RPBA and Article 114(2) EPC to not admit this new objection into the proceedings." 

EPO T 1381/15 - link

3.2 This objection was neither mentioned in the appealed decision nor in the written submissions of opponent 2 on appeal. In fact, opponent 2 did not contest that the objection was raised late. In its view, it constituted an argument based on a ground of opposition in the proceedings (Article 100(b) EPC), and, for this reason, it had to be considered by the board. In this context, reference was made to T 1914/12.

3.3 According to the headnote of T 1914/12, the boards of appeal do not have any discretion as to the admissibility of arguments submitted late which are based on facts already in the proceedings. However, the board does not consider the specific objection raised by opponent 2 an argument based on facts already in the proceedings.

3.4 Firstly, this objection relies on pieces of evidence (the first and the second priority document) which had not been discussed in the context of sufficiency of disclosure. In fact, the priority documents were not at all discussed on appeal (see also point 2 above). Moreover, the board had listed in its communication (point 1.2) the documents that it considered "used and discussed on appeal". The first and second priority documents were not in that list, and opponent 2 did not indicate until the oral proceedings that it wished to rely on these documents.

3.5 Secondly, the facts relied upon by opponent 2, namely, the stability of the fat droplets and the contribution of the polar lipids to this effect, had not been mentioned on appeal, let alone in the context of sufficiency of disclosure. However, it is this factual disclosure of the evidence that provides the starting point for the proposition developed by opponent 2.

3.6 In summary, in the present case, the board identifies a bundle of new (pieces of) evidence and new (allegations of) facts which are used to formulate a new objection (a new attack). However, the board fails to see that this specific objection raised by opponent 2 is based on facts already in the proceedings. The newly raised objection based on the alleged discrepancies between the present application and the priority documents is therefore not a mere argument which can be made at any time. Thus, its admission into the proceedings is subject to the board's discretion.

3.7 In view of the extremely late state of the proceedings and the complexity of the new objection, the board exercised its discretion under Article 13(1) RPBA and Article 114(2) EPC to not admit this new objection into the proceedings.