T 2226/19 - Auxiliary Request, Art. 123(2), so remit

Key points

• The OD found the claims of the main request to be allowable. The Board finds them to lack an inventive step. The Board then arrives at the auxiliary request that was (timely) filed before the OD.
• The Board in translation: " In Annex 1 to the statement of grounds of appeal, the appellant [opponent] raised additional objections under Rule 80 EPC and Articles 56, 83, 84 and 123(2) EPC in connection with the pending auxiliary request I, which relate to the changes in auxiliary request 1 compared to the main application." 
• Note, using an Annex for these objections is accepted in this case under Art. 12 RPBA.
• " Because the opposition division was of the opinion that the patent based on the main request met the requirements of the EPC, the interim decision does not contain a substantive assessment of the patentability of the auxiliary request in the version of February 27, 2019. Consequently, the board would have to examine the auxiliary request which takes into account all further objections raised by the appellant under Rule 80 EPC and Articles 56, 83, 84 and 123(2) EPC." 
• " After considering the circumstances of the present case, the board concludes that the questions relevant to patentability in the present case, including, but not limited to, the examination of whether the requirements of Article 123(2) EPC and inventive step are met, may not be able to be decided without unreasonable effort. There are therefore special reasons for the case to be referred back to the lower court (Article 11 RPBA, Article 111 EPC)."
• As a comment, it does not seem unusual to me that there are additional objections from the opponent against the lower-ranking requests. 
• We will have to see how many years the opposition procedure will additionally take by the remittal. 
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• EPO 

The link to the decision is provided after the jump.

https://www.epo.org/de/boards-of-appeal/decisions/t192226du1