T 1223/23 - To guarantee that the decisions, based on the facts and evidence adduced, are substantively correct

Key points

• A decision with some rather general reasoning on the admissibility of new facts (or arguments) in an appeal. 
• "During the oral proceedings before the board, the appellant [proprietor] submitted - for the first time in appeal proceedings - that document D2 could not be relevant to the novelty assessment of the subject-matter of claim 1 because, in the scheme of D2, the determination of the PUCCH format was done at the UE [user equipment, e.g. mobile phone], whereas granted claim 1 concerned the BS [base station]."
• "In the decision under appeal, the opposition division found the main request not allowable only due to lack of novelty of the subject-matter of claim 1 as granted in view of D2."
• The question is whether to admit this new argument or not.
• "even on the assumption that the board had indeed discretion not to admit a late-filed argument, the board considers that there would be no justification to exercise it here. Once the parties have submitted the relevant claim requests and documents and presented their arguments on them, the board must resolve a number of legal issues falling under its judicial responsibility. These include the interpretation of the claims, the construction of the relevant (prior-art) documents and the proper assessment of their disclosure from the perspective of a skilled person in the respective field."
• "If the board becomes aware, even at a late stage, that its previous interpretation of a (prior-art) document or a claim from the perspective of the skilled person, or its understanding of a prior-art technical teaching, was wrong, in the present board's view, it has a duty to correct that error. This applies irrespective of whether the new understanding arises from the board's own analysis or from a party's new submission."
• "In the present case, to disregard the appellant's argument and keep its original understanding of the scheme disclosed in D2 would force the board to base its decision on an interpretation which it considers erroneous. The procedural framework of the appeal proceedings aims to secure efficient and fair proceedings, but also to guarantee that the decisions, based on the facts and evidence adduced, are substantively correct. In other words, a (technically) correct interpretation of a prior-art document has taken precedence over formal or procedural considerations here. For this reason, once convinced by the appellant's submission, the board adopted it in its assessment of the present case."
• The facts and evidence 'adduced' refer to the admissible factual assertions and admissible evidence. Apparently, in this case, the new argument of the proprietor did not involve new (asserted) facts or new evidence. 
• The Board remits the case, without commenting on whether the difference with D2 provided for an inventive step or not. 
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EPO 

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

https://www.epo.org/en/boards-of-appeal/decisions/t231223eu1