T 0924/22 - Applying the GL under Art.12(4) RPBA

Key points

• Should the Boards apply the Guidelines under the 'admissibly raised' clause of Art. 12(4) RPBA? 
• The Board:  "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."

EPO 

The link to the decision and an extract of it can be found after the jump.

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

3.10 Therefore, the subject-matter of claim 1 of the main request is not new over D2 and D7. The same conclusion holds for method claim 13, reciting similar or corresponding features in the form of method features.

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.

5. First auxiliary request - Added subject-matter

5.1 Auxiliary request 1 is amended to claim an assembly formed by two protective garments, each having the same features as the garment of the main request, further being designed to be paired, and suitable for transmitting an activation signal to one another that inflates the other's inflatable device.