T 0478/17 - Article 123(2) objection as fact

 Key points

• The opponent raises an article 123(2) objection against dependent claims 2-4 in its Statement of grounds. In the first instance proceedings, "the only objection under Article 123(2) EPC was raised in the oral proceedings against dependent claims 12-18 of the main request. "
• “Pursuant to Article 12(4) RPBA 2007, the board has the power to hold inadmissible, inter alia, facts and evidence which could have been presented or were not admitted in the first-instance proceedings even if they were presented with the statement of grounds of appeal and the requirements of Article 12(2) RPBA 2007 are met.”
• Article 12(4) RPBA 2007 does not simply say 'objections', just as Article 114 EPC does not refer to late-filed objections. 
• The present Board: “Dependent claims 12-18 of the main request define the further ingredients and their amounts. Claims 2-4 of the main request, on the other hand, concern crystalline properties of the hemitartrate salt of claim 1 of the main request. Thus, the objection of added subject-matter against claims 2-4 of the main request is based on facts different from the ones presented in the context of claims 12-18 of the main request before the opposition division. Thus, the objection under Article 123(2) EPC against claims 2-4 of the main request is neither based on nor derivable from the objection raised before the opposition division.” 
• “It constitutes a new allegation of fact raised for the first time in the statement of grounds of appeal (paragraph 2).”
  
  
• The Board also acknowledges the inventive step for a salt form of a medical compound.
• “The board distinguishes the present case from the situation at issue in decision T 777/08. This decision dealt with an arbitrary selection of any crystalline form and considered it obvious that any arbitrary crystalline form had better filterability and drying characteristics than the corresponding amorphous form. This is entirely different from the present case. The present case is not about the selection of any crystalline form but about the selection of one specific salt, namely eliglustat hemitartrate, in which at least 70% by weight of the salt is crystalline. Furthermore, the selection of this specific salt is not arbitrary. Rather, this salt has unexpected properties, namely an improved (reduced) hygroscopicity and an improved chemical stability.”

EPO T 0478/17 - link

decision text omitted.