T 2156/17 - Article 113 EPC does not entail the right

Key points

• The Board does not admit request 1a.
• "Auxiliary request 1a is an attempt to parry the Board's decision not to admit the new first and fourth auxiliary requests on the ground of lack of convergence, when compared to the new main request."
• "There is nothing exceptional in the board applying the criterion of convergence to question the admissibility of an auxiliary request freshly filed in appeal proceedings (Article 13(2) RPBA 2020). Although convergence, as stressed by the appellant, is not the sole criterion, there is also nothing surprising in the Board applying it to the new first and fourth auxiliary requests filed in response to the communication of the Board. "
•  " The right to be heard under Article 113 EPC does not entail the right to be given further possibilities to file new requests if earlier attempts fail. In the Board's judgment, the appellant's right to be heard is met under the circumstances, since they were aware of the objections to the admissibility of the earlier requests, and had the opportunity to contest this and present their arguments (T 732/21)."
• The Board does not specify any particular paragraph. To cite that decision: " the purpose of the rules of procedure before the Boards is not, in itself, the refusal to consider late requests, but rather the defence of the parties rights to a fair hearing within a reasonable time, and that, in view of the above, in the present case, consideration of this particular request [i.e. admitting it] does not impair these basic rights of either party"
  
  
• On inventive step:  "The claimed invention is a mixture of technical and non-technical features. The approach generally followed to assess inventive step of the subject-matter of a claim comprising a mixture of technical and non-technical features derives from T 641/00, Two identities/COMVIQ, OJ EPO 2003, 352. This approach was generally endorsed by the Enlarged Board of Appeal in G 1/19 Pedestrial simulation, OJ EPO 2021, A77, points 31-34, and points 35 and 36 with explicit reference to G 3/08, Programs for computers, OJ EPO 2011, point 10.13.2)."

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://www.epo.org/law-practice/case-law-appeals/recent/t172156eu1.html

Auxiliary request 1a - Admissibility

25. Auxiliary request 1a was filed during the oral proceedings before the Board, so its admission is subject to Article 13(2) RPBA 2020 (cf. point 1, above), and also the criteria of Article 13(1) RPBA 2020.

26. Auxiliary request 1a is an attempt to parry the Board's decision not to admit the new first and fourth auxiliary requests on the ground of lack of convergence, when compared to the new main request. (The admissibility of the fourth auxiliary request is discussed, below).

27. The appellant's arguments are not sufficient to decide favourably on the admissibility of auxiliary request 1a. The circumstances referred to by the appellant are not exceptional, but relate, on the contrary, to ordinary aspects of the appeal proceedings.

28. There is nothing exceptional in the board applying the criterion of convergence to question the admissibility of an auxiliary request freshly filed in appeal proceedings (Article 13(2) RPBA 2020). Although convergence, as stressed by the appellant, is not the sole criterion, there is also nothing surprising in the Board applying it to the new first and fourth auxiliary requests filed in response to the communication of the Board. It was up to the appellant to consider the rules of procedure and the criteria applied according to the case law, and the possible consequences resulting from this new request being filed in reaction to the Board's preliminary opinion.

29. The right to be heard under Article 113 EPC does not entail the right to be given further possibilities to file new requests if earlier attempts fail. In the Board's judgment, the appellant's right to be heard is met under the circumstances, since they were aware of the objections to the admissibility of the earlier requests, and had the opportunity to contest this and present their arguments (T 732/21).