T 0533/17 - Conceal own earlier plublication

 Key points

• This decision deals with the admissibility of D19 filed in the course of the appeal (Article 13(1) RPBA).
• “In the appellant's [opponent's] view, the poster D19 and the related documents D19a and D19b should be considered since the respondent [patentee] "apparently decided to conceal this earlier own publication". Such behaviour should not be rewarded by not admitting these documents.”
• The Board: “However, it is noted, first, that Rule 42(1)(b) EPC does not put a stringent obligation on the applicant to acknowledge prior art known to him already at the time of filing the application. Therefore, the failure to acknowledge D19 in the patent in suit is not a sufficient reason for admitting this document into the appeal proceedings. 
• Secondly, the appellant has not provided a convincing justification of why it was possible to find D19 when preparing for the oral proceedings relating to the patent originating from the divisional European patent application No. 12 004 053, but not when preparing the present case at the opposition stage. In the present case, the amendments to the main request were made as long ago as 2015, and auxiliary request 1 differs therefrom only in the deletion of claims. Consequently, the amendments cannot be considered to have triggered an additional search late in the appeal stage.”

T 0533/17

https://www.epo.org/law-practice/case-law-appeals/recent/t170533eu1.html

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