T 2623/17 - A full-fledged discussion of inventive step

Key points

•  "Document D11 was not admitted by the opposition division on the ground that it was prima facie not relevant because  [...]. The prima facie relevance is an established criterion for assessing the admittance of late filed documents in the first instance proceedings. The opposition division therefore applied a correct criterion. 
• "Any discussion as to whether the criterion of prima facie relevance was applied in a reasonable manner inherently touches upon the substance of the case. In the present case, this discussion during the oral proceedings before the board became so detailed that it could eventually only be considered a full-fledged discussion of inventive step. The board therefore left the question of admissibility open. In view of the outcome of the discussion, neither party is adversely affected by proceeding in this manner."
• The Board, after a lengthy discussion of inventive step in view of D11 "What the appellant's [opponents] argument really demonstrates is that a skilled person, even when considering the combination of D11 and D1, would still not arrive at the claimed solution but would have had to make the further modification of adding of oxygen, which itself is motivated by non-obvious insights, such as that fluoroketone decomposition products do not recombine as readily as those of SF6 and that oxygen can be used to scrub them."
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EPO T 2623/17 

The link to the decision is provided after the jump

https://www.epo.org/law-practice/case-law-appeals/recent/t172623eu1.html