T 2833/19 - Convergence at the time of the decision?

Key points

• The opponent requests that a request is not admitted, on the ground that the request allegedly was not convergent with the preceding ones.
• "This argument does not take account of the fact that the alleged lack of convergence does not exist now that the requests have been reordered. "
• Note, there is some case law stating that admissibility must be decided based on the circumstances when filing the request.

EPO 

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

https://www.epo.org/en/boards-of-appeal/decisions/t192833eu1

3. Third auxiliary request

3.1 Admittance - Article 12(4) RPBA 2007

The third auxiliary request (dealt with before the second auxiliary request in the appeal proceedings, as per the patent proprietor's preference) was filed as the sixth auxiliary request with the patent proprietor's statement of grounds of appeal. Thus it is by default part of the appeal proceedings unless the Board sees valid reasons to hold it inadmissible (Article 12(4) RPBA 2007).

The only reason argued by the opponent in this regard was that the request allegedly was not convergent with the preceding ones.

This argument does not take account of the fact that the alleged lack of convergence does not exist now that the requests have been reordered. Claim 1 of the third auxiliary request is based on claim 1 of the first auxiliary request, further converging the subject-matter with an additional limitation of the roughness ranges, which now include a lower limit (feature H').

Consequently, there are no reasons to hold the third auxiliary request inadmissible.