T 0693/17 - No attacks admitted

 Key points

• The opponent appeals. Board 3.2.07 decides not to admit any of the objections based on Art.12(4) RPBA 2007.
• As a comment, Art. 12(4) RPBA 2007 refers to  "the power of the Board to hold inadmissible facts, evidence or requests which could have been presented or were not admitted in the first instance proceedings" and does not refer to 'objections'.
• The opponent raises an Art. 123(2) objection in the Statement of grounds. The Board: “This objection is not dealt with in the appealed decision ... The appellant [opponent]  acknowledged at the appeal oral proceedings that the above objection was not explicitly raised at the oral proceedings in opposition. ... The Board notes that it is the party's responsibility to present their case and to submit promptly all their objections. ”
• “The Board concludes therefore that the above objection of added subject-matter could and should have been maintained during the oral proceedings in opposition and therefore exercises its discretion pursuant to Article 12(4) RPBA 2007 by not admitting this objection into the appeal proceedings.”
• The Board also does not admit the novelty attack based on D1. The opponent had only contested novelty over D3 for the request at issue during the oral proceedings before the OD. The Board: “The Board cannot follow the argument of the appellant, that the present objection should be admitted into the proceedings because the lack of novelty in view of D1 was not pursued at the oral proceedings in opposition only for reasons of procedural economy, since the opposition division considered D1 not to deprive novelty of the subject-matter of claim 1 according to the initial main request. ... The Board notes that the fact that the decision does not deal with D1 is solely the consequence of the appellant's own procedural strategy. Had the appellant raised the objection at the oral proceedings, the opposition division would necessarily have dealt with it in the decision under appeal.
• The Board also does not admit the inventive step attack because: “The Board notes that the technical problem identified by the appellant in opposition proceedings was a different one, ” So the same combination of documents (D1+D3) was used for the inventive step attack before the OD.
• “The inventive step attacks starting from D3 submitted in the appeal proceedings differ therefore substantially from the inventive step argumentation brought forward in opposition proceedings. No reason why these new lines of argument are presented for the first time in appeal proceedings has been indicated by the appellant, nor is it apparent to the Board.”
• So even 'new lines of arguments' in the Statement of ground can be held inadmissible under Art. 12(4) RPBA 2007, according to this Board.

 
• Finally, “the Board notes that, since none of the objections and lines of argument of the appellant are admitted into the proceedings, as also acknowledged by the appellant at the oral proceedings before the Board, there are no admissible reasons for allowing the appeal or for remitting the case to the opposition division.”

EPO T 0693/17  - https://www.epo.org/law-practice/case-law-appeals/recent/t170693eu1.html

(decision text omitted)