T 2314/22 - The limits on filing auxiliary requests in oral proceedings OD

Key points

• "According to the minutes of the oral proceedings before the Opposition Division (see page 5, under the time stamp 12:31 to the end of page 6) the proprietor asked for an opportunity to file an additional Auxiliary Request, which was denied by the Opposition Division. The discussion evolved generally around such an opportunity, but no particular additional request was ever filed."
•   In their reasoning for not admitting any further auxiliary requests, the Opposition Division mainly argued that any further auxiliary request, filed only during oral proceedings and, thus, late, would be against the principle of equal treatment of the parties, and economy of the procedure (decision, reasons, section 12.3) and stressed that Filing a new request would therefore put once again the opponent in a situation of disadvantage, as he will be faced with the undue burden to have to analyse the new request within the limited amount of time available during an oral proceedings. "" 
• The Board: "the Opposition Division should have exercised their discretion differently, and not denied the proprietor any opportunity of filing additional requests during oral proceedings." [i.e., should not have denied the opportunity to file any further auxiliary requests]. 
• "Since oral presentations are generally different from written presentations, and discussions among the parties and with the division might clarify misunderstandings, there should be possibilities for the parties to react, even during oral proceedings. "
• "It is within the Opposition Division's discretion to admit such reactions [i.e., to hold them inadmissible], [these reactions] as expressed by new requests, facts or arguments, "
• "but in order to do so [i.e., hold inadmissible] - if time allows, as it did here - they [the OD] should at least have a look at them [the auxiliary requests, it assumes a written document] and then decide whether they and the other party [opponent] would be able to deal with them during the oral proceedings or not. 
• "It is accepted that repetitively filing new requests during oral proceedings might amount to a procedural abuse [abuse of procedure], which would give the Opposition [D]ivision discretion to prevent further filings. But this was not the case here, since the proprietor had not filed any further request during oral proceedings. "
• "As a consequence, the Board agrees that, given that non-admittance of any further auxiliary requests was incorrect, the Opposition Division violated the appellant's right to be heard (cf. R 12/22, point 3.2.4 of the Reasons)."

EPO 

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

https://www.epo.org/en/boards-of-appeal/decisions/t222314eu1