R 0010/24 - Review of decision to hold inadmissible

Key points

• The EBA took some time to draft its decision (7 months), but the result does not disappoint.
• The petitioner complains of the TBA's decision to hold a submission inadmissible.
• The EBA, in the translated headnote: "Because of the severity of the interference caused by the non-admission of amended submissions under the provisions of the RPBA, i.e. Articles 12 and 13 thereof, the interpretation and application of those provisions, which qualify the right to be heard, are subject to substantive review and not merely to review for arbitrariness. In this respect, the right to be heard is infringed, for example, also where such provisions are applied in a manifestly incorrect manner. "
• On the admissibility:  "According to the petitioner, an objection concerning the first ground for review — procedural defects under ... Article 113(1) EPC... — could not have been raised during the oral proceedings before the Board of Appeal, since, following the rejection of the auxiliary request, the Board had been bound by that decision. In this respect, the petitioner relies on R 10/08 and R 3/10."
• "It was undisputed that a formal decision had been announced on the main request, which had prevented the Technical Board of Appeal from reopening the debate on that request when [if?] the objection [under Rule 106] was raised ( "als der Einwand erhoben worden sei")."
• According to the minutes, no objection under Rule 106 was raised. 
• "In R 3/10, at point 1.4.1, it was held as follows: since a Board of Appeal is bound by a substantive “decision” once it has been issued and can no longer rectify it subsequently, and since the purpose of the obligation to raise an objection under Rule 106 EPC is to give the Boards of Appeal the opportunity to remedy the defect before a decision is issued, an objection under the first alternative of Rule 106 EPC can no longer be validly raised after the decision has been issued (R 10/08 of 13 March 2009, point 3).
• "To the extent that the petitioner relies on decision R 3/10 as establishing an exception to the obligation to raise an objection under Rule 106 EPC, the EBA is inclined, in relation to the present case, not to dismiss the petition for review as manifestly inadmissible solely on account of the failure to raise such an objection." 
• The EBA appears to see a difference with point I.2.2 of  R 5/19.
• The EBA examines the case file in some detail and concludes that the opponent had raised the relevant objection in the appeal. Moreover, the objection was included in the OD's decision. Hence, the proprietor should have filed the responsive auxiliary request before the Board gave their preliminary opinion. 

• 
  

EPO R 10/24

https://www.epo.org/en/boards-of-appeal/decisions/r240010du1