T 0194/17 - Applying Rule 57a EPC 1973 under RPBA 2020

 Key points

• PCT application filed in 2005, EP entry 2007, Communication Examing Division 2009, some exchange of letters, a decision to grant 2014, decision rejecting the opposition in 2016 and that makes that the present Board applies Rule 57a EPC 1973 in this decision taken 03.12.2020.
• The Board provides a useful summary of the transitional provisions: “According to Articles 1(1) and 6, first sentence of the Decision of the Administrative Council of 28 June 2001 on the transitional provisions under Article 7 of the Act revising the EPC of 29 November 2000 (Special edition No. 4, OJ EPO 2007, 217), Articles 54(2), 56, 87, 100, 111 and 113 EPC 1973 as well as Articles 52, 54(3) and 153 EPC (2000) apply. With respect to potentially colliding European applications pursuant to Article 54(3) EPC, however, the provisions of Article 54(4) EPC 1973 continue to apply. By analogy, with respect to potentially colliding Euro-PCT applications pursuant to Article 54(3) EPC, the provisions of Article 158(2) EPC 1973 and Rule 106 EPC 1973 continue to apply. Since Rules 57a and 67 EPC 1973 are linked respectively to Articles 100 and 111 EPC 1973, they are to be applied in the present case (by analogy with J 10/07, OJ EPO 2008, 567).”
• I'm not sure whether this is still EQE stuff, but it is useful in practice to be aware of it when working on long-running cases or litigation about old patents. 
• The main request is not inventive. Auxiliary requests were filed with the Statement of grounds. Admissibility is to be decided. 
• The Board: “In its provisional opinion, the Board explicitly drew the respondent's attention to the appellant's submission that the auxiliary requests failed to meet the requirements of Rule 57a EPC 1973 since they were not accompanied by any reasons as to why they overcome a ground of opposition”
• As a comment, the opponent’s objection actually was: “The appellant [opponent] requested that the first to fourth auxiliary requests not be admitted into the appeal proceedings, since although they essentially correspond to claims that had been filed during the opposition proceedings, the respondent [patentee] had never submitted any supporting argumentation to explain the amendments. In their view the claims were also not prima facie clearly allowable. However, it was not up to them to speculate on why the subject-matter of any of the requests might or might not comprise allowable subject-matter. Furthermore, several of the amendments appear to be merely changes to the reference signs and grammar and therefore do not meet the requirement of Rule 57a EPC 1973.”
• As a comment, that “auxiliary requests [not] accompanied by any reasons as to why they overcome a ground of opposition” are inadmissible, seems established case law to me, but not based on Rule 80. 
• “Such requests - which are not self-explanatory - are considered by the Board as being submitted only on the date of their substantiation, i.e. during the oral proceedings.”

EPO T 0194/17 - link

decision text omitted.