T 1362/20 - The request filed at 19:41 before the OD

Key points

•  The OD decided to maintain the patent in amended form based on the auxiliary request filed on 19:41. The opponent appeals and presents new clarity objections, which are not inadmissible under G 3/14. The Board has to decide whether to admit them under Art. 12(4) RPBA. The patentee argues that the objections could have been submitted during the oral proceedings before the OD.
• The Board in translation: "During the oral proceedings before the opposition division, the patent proprietor did not defend any of the auxiliary requests filed in the written procedure. After the main request - as already explained in the preliminary opinion of the opposition division - had fallen because of an inadmissible intermediate generalization, the patent proprietor filed new auxiliary requests. Auxiliary requests 1a, 1b and 2a and the auxiliary request (19:41) [which contained, for the first time, the amendment objected to as rendering the claims unclear] were not filed before the opposition division until the afternoon of the oral proceedings and each contained features taken from the description. The complainant had about half an hour to deal with the newly submitted applications."
• "The Board is of the opinion that it would have been possible to identify a lack of clarity within this time frame. The [opponent] could therefore have raised the objection. However, in view of the tight time frame, this could not be demanded of her, so that the objection should not have been raised within the meaning of Article 12(6), second sentence, RPBA 2020 [i.e. the opponent was not obliged to raise the objection]. Since the amendments were taken from the description and were admitted into the opposition proceedings at a very late point in time, it is fair to allow new objections to the amended claims if these objections are raised at the first opportunity in the appeal proceedings."
• Moreover, the objection is highly relevant (note: the Board does not say prima facie highly relevant, which seems important and is consistent with the wording of Art.12(4). The objection is admitted.
• The claim is found to be unclear.
• All other auxiliary requests contain the feature.
• The patent is revoked. 

EPO 

The link to the decision is provided after the jump,

https://new.epo.org/de/boards-of-appeal/decisions/t201362du1