- The Board concludes that Art.13(1) RPBA 2020 applies also to submissions filed before 01.01.2020: “where the summons to oral proceedings or a Rule 100(2) EPC communication has been notified before 1 January 2020, Article 13(1) RPBA 2020 applies simultaneously with Article 13(1) and (3) RPBA 2007. Where such notification has been done after that date, solely Article 13 RPBA 2020 applies without exception”.
- The Board also issues an abridged decision (in part): “The Board concludes from this precondition of concurrence with (parts of) the decision under appeal as well as from the legislator's intention [] that [it can] refer [in the present decision] to those parts of the findings and reasons in the decision under appeal to which it agrees.”
- The opponent raised a novelty attack based on public prior use with the statement of grounds. The Board does not admit it under Art.12(4) RPBA 2007. The appellant had cited T560/89 and T258/84.
- “the aforementioned decisions were issued several years before entry into force of the Rules of Procedure of the Boards of Appeal 2003 by which the provision equivalent to Article 12(4) RPBA 2007 was first introduced [OJ 2003, p.61], the Board notes that both decisions are not pertinent in the present case for evaluating admittance of the novelty attack pursuant to Article 12(4) RPBA 2007.” (T560/89 is cited in CLBA IV.C.4.5.3; T258/84 in IV.C.4.5.1; chapter IV of the CLBA is about first instance proceedings but they seem to be both cited for admissibility in appeal). The Board does not admit the attack.
- The Board concludes that claim 1 is novel over D1, as already found by the OD. “The [opponent-appellant] intended for the first time at the oral proceedings before the Board to argue against inventive step of the claimed subject-matter based on the teaching of D1 in combination with the common general technical knowledge of the person skilled in the art.”
- The Board does not admit the attack. “the Board concludes that admitting into the proceedings the line of argument relating to lack of inventive step of the claimed subject-matter would not only substantially add to and considerably change the complexity of the matter to be discussed and decided upon, but would be contrary to the need for procedural economy and would take the [patentee respondent] by surprise.”
- “Consequently, applying Article 13(1) RPBA 2020 as well as Article 13 RPBA 2007, in particular Article 13(1) and (3) RPBA 2007, the Board does not admit into the appeal proceedings the appellant's inventive step attack based on the combination of the teaching of D1 as the closest prior with the common general technical knowledge of the person skilled in the art”.
EPO T 2227/15 - link
Reasons for the Decision
1. Revised Rules of Procedure of the Boards of Appeal (RPBA 2020) - Transitional provisions
The present proceedings are governed by the revised version of the Rules of Procedure which came into force on 1 January 2020 (Articles 24 and 25(1) RPBA 2020), except for Articles 12(4) to (6) and 13(2) RPBA 2020 instead of which Articles 12(4) and 13 RPBA 2007 remain applicable (Article 25(2) and (3) RPBA 2020).
The general applicability of the RPBA 2020 to the present proceedings includes Article 13(1) RPBA 2020, irrespective of the fact that the summons to oral proceedings was notified before 1 January 2020.
