Key points
- "The board is convinced by the appellant's [opponent's] arguments and is therefore of the opinion that the subject-matter of claim 1 lacks novelty with respect to the disclosure of document D2."
- The auxiliary requests are not admitted. "The respondent [patentee] had filed the First, Second and Third Auxiliary Requests during the first-instance opposition proceedings and upheld them in the appeal proceedings. As indicated above (see point [2]), the respondent referred only in general to its submissions made during the opposition proceedings with regard to these requests."
- " In their submissions, both the appellant (see e.g. section VII) and the respondent (see pages 1 and 2) referred in general to their submissions made during the opposition proceedings.
However, merely referring generally to submissions made during first-instance opposition proceedings cannot be seen as meeting the requirement of Article 12(2), second sentence, RPBA 2007 ... The board therefore does not take into account, pursuant to Article 12(4) RPBA 2007, the parties' submissions made during the opposition proceedings and referred to only in the appeal proceedings. As a consequence, this decision considers only the documents expressly referred to, the requests sufficiently substantiated, and the arguments expressly brought forward in the statement setting out the grounds of appeal or the reply thereto."
- " In view of the above, the board is of the opinion that the First, Second and Third Auxiliary Request have not been properly substantiated in the reply to the statement setting out the grounds of appeal, contrary to the requirements of Article 12(2) RPBA 2007. As a consequence, the board does not take into account the First, Second and Third Auxiliary Requests according to Article 12(4) RPBA 2007 "
- " Since none of the respondent's requests is allowable, the patent must be revoked (Article 101(2)and (3) EPC)."
- As a comment, the Board does not comment on whether the novelty of e.g. AR-1 over D2 is self-evident (cf. T 0032/16 r.1.5.2).
EPO T 2196/19
The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.
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