T 0599/24 - Art. 113 and auxiliary requests, what about main request?

Key points

• The OD revoked the patent. The proprietor appeals. The issue before the OD was insufficient disclosure, Art. 100(b) EPC.
• In translation: " according to the minutes of the oral proceedings before the Opposition Division, the appellant [=proprietor] was not allowed to submit arguments concerning the auxiliary requests. Following the pronouncement of the Opposition Division's opinion that "the damage under Article 100(b) [was] irreparable" (minutes, point 8), the appellant indicated that it wished to rearrange the order of the auxiliary requests (minutes, point 8.2), which the Chairman did not allow (minutes, point 8.3). After the appellant then stated that it had no further comments concerning the main request (minutes, point 8.4), the Chairman began to pronounce the revocation of the patent (minutes, point 8.5). The applicant drew attention to the failure to comply with her request regarding the subsidiary requests (minutes 8.5 and 8.7). After deliberation with the division, the President indicated that the final decision had been given and that, consequently, the applicant's request could no longer be considered; the oral proceedings were then closed (minutes 8.10) without the applicant being given the opportunity to be heard on the subsidiary requests already in the file or to submit any amended requests."
• The Board considers this to be a substantial procedural violation.
• The Board also remits the case.
• The Board does not comment on the claims as granted.
• In appeal, "The appellant requested that the decision of the Opposition Division be set aside on the grounds of a substantial procedural violation (violation of the right to be heard) and that the case be remitted to the first instance. In addition, it requested reimbursement of the appeal fee."
• The respondent had contested the admissibility of the appeal: "the statement of grounds of appeal does not contain any substantive arguments concerning the reasoning of the decision under appeal, it meets the requirements of Rule 99(2) EPC and Article 12(3) RPBA. The only objection raised by the appellant in its grounds of appeal is that the decision is based on a violation of its right to be heard."
• The Board considered the appeal to be admissible: "In the present case, the grounds of appeal contain sufficient explanations as to why the appellant considers that its right to be heard was not respected and, therefore, that the contested decision should be annulled. In addition, the grounds set out the facts in detail with reference to the minutes of the oral proceedings before the Opposition Division."
• Now the question is: must the OD decide again on the sufficiency of disclosure of the claims as granted, or is this res judicata as not being contested in the appeal?

EPO 

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

https://www.epo.org/fr/boards-of-appeal/decisions/t240599fu1