T 0241/18 - Losing an attack in the Statement of grounds

 Key point

• The opponent - appellant submitted an inventive step attack in a letter filed shortly before the hearing before the Board. The attack had been advanced in the notice of opposition and was pursued at the oral proceedings before the OD. However, the attack was not invoked in the Statement of grounds, such that submitting it with said letter is a change of the opponent's appeal case under Art. 13 RPBA 2020.
• The attack is not admitted because "has not been shown, nor even been argued that there are any exceptional circumstances which would occasion or justify the new - in the appeal proceedings - attack on inventive step." 

EPO T 0241/18 - link

1.2 In the letter of 25 August 2020 the appellant attacked inventive step on the basis of a combination of D3 and D4. This attack had been advanced in the notice of opposition (page 7, last two paragraphs) and was pursued at the oral proceedings before the opposition division (minutes, paragraph 8.2; Reasons for the Decision, section 4, page 8 second-fifth paragraphs).

However this objection was not invoked in the statement of grounds of appeal. Indeed, D4 was not invoked in any manner in the submissions on inventive step.

Raising this objection therefore constitutes an amendment to the appellant's case, made after issue of the summons to the oral proceedings on 15 January 2020. This is after entry into force of RPBA 2020, meaning that pursuant to Article 25(1) and (3) RPBA 2020, Article 13(2) RPBA 2020 applies.

It has not been shown, nor even been argued that there are any exceptional circumstances which would occasion or justify the new - in the appeal proceedings - attack on inventive step.

Accordingly pursuant to Article 13(2) RPBA 2020 the amendment to the appellant's case represented by the new attack on inventive step is not taken into account.