T 0924/22 - Admissibly raised before the OD

Key points

• The Board decides on the admissibility of carry-over requests.
• "Admission of auxiliary requests 1 to 7. The requests were filed early on in the opposition proceedings, with letters of 21 October 2019, 3 September 2020 and 5 August 2021 respectively, before the Rule 116(1) EPC deadline of 6 August 2021 mentioned in the summons of 25 November 2020."
• " Even if they did not converge, that criterion applies only if requests are late filed, after the Rule 116(2) deadline, see Examination Guidelines 2024, H-III, 3.3.2.2. As they were further substantiated to the required level in opposition, they are seen to have been admissibly raised in opposition. Though they were not examined there is no indication that these requests were not maintained."
• " Finally, though their substantiation in appeal is very succinct, the Board considers it sufficient to allow all to understand the case the respondent proprietor is making for them. The Board therefore decided to admit these requests into the appeal proceedings in the exercise of its discretion under Art 12(4) and 12(5) RPBA."
• As a comment, the requests were carry-over requests, that were admissibly raised before the OD (so the Board judges). Hence, there was no discretion under Art. 12(4), and they were substantiated, so there was no ground for holding them inadmisisble under Art. 12(5) RPBA.
• For a different approach (no consideration of the GL to determine the meaning of "admisisbly raised" in Art. 12(4) RPBA), see T 0246/22

EPO 

You can find the link to the decision and an extract of it after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t220924eu1

4. Admission of auxiliary requests 1 to 7

The requests were filed early on in the opposition proceedings, with letters of 21 October 2019, 3 September 2020 and 5 August 2021 respectively, before the Rule 116(1) EPC deadline of 6 August 2021 mentioned in the summons of 25 November 2020. Even if they did not converge, that criterion applies only if requests are late filed, after the Rule 116(2) deadline, see Examination Guidelines 2024, H-III, 3.3.2.2. As they were further substantiated to the required level in opposition, they are seen to have been admissibly raised in opposition. Though they were not examined there is no indication that these requests were not maintained. Finally, though their substantiation in appeal is very succinct, the Board considers it sufficient to allow all to understand the case the respondent proprietor is making for them. The Board therefore decided to admit these requests into the appeal proceedings in the exercise of its discretion under Art 12(4) and 12(5) RPBA.