T 0885/18 - Don't forget the rejoinder

Key points

•  The OD revokes the patent. The patentee appeals. " With their reply to the statement of grounds of appeal, the respondent [opponent] raised inter alia a novelty objection based on D1."
• "At the beginning of the oral proceedings, the appellant changed their appeal case concerning the novelty objection based on D1 without presenting exceptional circumstances which have been justified with cogent reasons"
• "The respective objection of lack of novelty of the subject-matter of claim 7 in view of D1 had been raised by the respondent as early as in the notice of opposition, but more relevantly for the appeal proceedings, in their reply to the statement of grounds of appeal. Furthermore, the board had indicated specifically in their preliminary opinion that they found the objection persuasive."
• " Nevertheless, the appellant did not comment on this objection until at the oral proceedings. When asked by the chairman, whether there were any special circumstances justifying this procedural behaviour, the appellant had no comment other than that the argument was very relevant."
• "The board is of the opinion in view of the facts of the case that it would have been appropriate for the appellant to react to this objection in a timely manner allowing the respondent and the board to properly prepare. "
• "For the same reason also an attempt to overcome the novelty objection based on D1 should have been made before, so that a further interruption of the oral proceedings for filing an amended request as requested by the proprietor was not justified."
• "Furthermore, the board does not share the appellant's opinion that the new submission should be taken into account because it was very relevant, as according to Article 13(2) RPBA 2020, the relevance of a submission is not a decisive criterion for admitting it."
• As a comment, the appeal was filed in 2018, well before the rejoinder was introduced in the explanatory remarks to the RPBA 2020. 

EPO - T 0885/18

The link to the decision is provided after the jump.

https://www.epo.org/law-practice/case-law-appeals/recent/t180885eu1.html