T 2803/18 - Distinguishing feature held inadmissible

Key points

• This is just a small post to illustrate a practical point: an assertion of the patentee that a claim has a (further) distinguishing feature over a prior art document, can be late-filed and be disregarded as inadmissible.
• "The Board decided, pursuant to Article 13(2) RPBA 2020, not to take into account the appellant's assertion that D2 failed to disclose the feature defining a learning phase."
• "The appellant [patentee] acknowledged that it had not submitted this contention in its reply to the statement of grounds of appeal. Contesting that the feature was disclosed in D2 introduced a new factual element into the proceedings and was consequently considered to constitute an amendment to the respondent's appeal case, indisputably submitted only after the notification of a summons to oral proceedings. The appellant did not argue that exceptional circumstances were present. Absent any exceptional circumstances justified by cogent reasons, the Board exercised its discretion according to Article 13(2) RPBA 2020 not to take this assertion into account."

EPO 

The link to the decision is provided after the jump.

https://www.epo.org/law-practice/case-law-appeals/recent/t182803eu1.html