T 1865/23 - Intervention and remittal

Key points

• Yesterday's post demonstrated that Article 123(3) does not apply by analogy to the set of claims that the Board considers possibly allowable and which set of claims forms the basis for the Board's decision to remit the case. In other words, the claims can be broadened during the procedure before the OD after the remittal, compared to the set of claims on which the Board based its decision to remit.
• In today's decision about solar cells, a notice of intervention was filed in appeal (hi G 2/24) by "Commissariat à l'énergie atomique et aux énergies alternatives (CEA)". I checked the file, and apparently, this French public institute was sued for patent infringement by the proprietor, though the details are redacted in the file wrapper.
• Opponent 1 filed the appeal against the decision of the OD to maintain the patent in amended form. The proprietor withdrew their appeal during the oral proceedings before the Board. The main request is therefore the set of claims held allowable by the OD.
• The Board finds the main request to be unallowable (Article 123(2), intermediate generalisation)
• The Board admits AR-10 and finds it complies with Article 123(2)).
• The Board remits the case.
•   In the present case, in its statement of grounds for intervention [filed during the appeal hortly after the appeal proceedings began by the Notice of appeal Opponent 1 and the proprietor], Opponent 2 questioned the priority of the patent in suit, referred to further documents (D32 to D51) and also to documents D29 to D31, which the Opposition Division had not admitted, and raised further objections with reference to these documents. In its reply to the patent proprietor's statement of grounds of appeal, it also submitted the additional documents D52 to D57."
• "Since Opponent 2/Intervenor is entitled to challenge the patent in suit "by all available means", documents D32 to D51 and documents D29 to D31, which were not admitted by the Opposition Division, must be taken into account."
• It is unclear to me if Opponent 1 had objections of novelty and inventive step against AR-10 in appeal. 
• It is also not entirely clear to me if the proprietor may now shift the subject-matter compared to the claims held allowable by the OD in the first decision of the OD. I mean that set of claims contained an added feature, which had to be narrowed in appeal to address the Article 123(2) issues of intermediate generalisation. Apparently, the proprietor had defended broader claims in its own appeal, but there is no written decision of the Board on those requests because the proprietor withdrew its appeal.

EPO 

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

https://www.epo.org/de/boards-of-appeal/decisions/t231865du1