T 1286/22 - No French style devolutive effect of appeal

Key points

• The opponent appeals. The patent is granted in French to a French proprietor, with a professional representative located in France.
• The Board finds the claims of the main request to be not novel.
• "During the oral proceedings before the Board, the respondent, after hearing the Board's findings on the main request, requested that auxiliary requests 3 to 5 as filed with the Opposition Division by letter dated 1 December 2021 be admitted into the appeal proceedings. It also requested that the case be remitted to the Opposition Division to consider these auxiliary requests."
• "The respondent referred to the minutes of the oral proceedings before the opposition division, stating in point 7.1 on page 10 that the said auxiliary requests 3 to 5 had been maintained. It argued that there had never been any question of abandoning these auxiliary requests. Since the contested decision concerned only the main request, the respondent was convinced that if the board had found the main request unfounded, the proceedings should automatically have continued on the basis of the auxiliary requests filed before the opposition division."' 
• As I understand it, this is (or traditionally was) indeed the case in French civil litigation under the 'devolutive effect' of the appeal (comments are welcome). But not at the EPO (anymore).
• The Board: "while Article 12(1)(a) RPBA provides that the appeal proceedings are to be based, inter alia, on the minutes of any oral proceedings before the Opposition Division, this provision does not mean that everything mentioned by the respondent according to the minutes of the oral proceedings before the Opposition Division, in particular the maintenance of auxiliary requests 3 to 5, automatically forms part of the grounds relied on by the respondent in the appeal."
• "None of the written submissions made by the respondent during the appeal proceedings referred to auxiliary requests 3 to 5. The raising of these auxiliary requests during the oral proceedings therefore constitutes an amendment of the respondent's grounds under Article 13(2) RPBA. The Board was unable to recognise any exceptional circumstances justifying the admission of this amendment of the respondent's grounds at such a late stage in the appeal proceedings. Indeed, compliance with the Rules of Procedure of the Boards of Appeal, in particular the provisions of Article 12(3) RPBA, is the responsibility of the parties."
• The requests are not admitted.
• The patent is revoked. 

EPO 

The link to the decision can be found after the jump.

https://www.epo.org/fr/boards-of-appeal/decisions/t221286fu1