- The patentee insists that he was not given the opportunity to present oral arguments regarding Auxiliary Requests 1 to 7 before the Opposition Division. According to the OD, the same issue of insufficient disclosure affected the main request and all auxiliary requests in the same way.
- The patentee submitted an objection under Rule 106 EPC because his right to be heard had been violated before the opposition division. The Board confirms that Rule 106 EPC does not apply to substantial procedural violations during first instance proceedings. "[A]ccording to the case law of the Enlarged Board of Appeal, decisions of departments of first instance cannot be reviewed under Article 112a EPC, even where the fundamental right to be heard has been infringed during the proceedings before the first instance".
- The patentee insisted on a remittal. The Board "considers that Article 32 TRIPs does not limit the board's discretion concerning remittal"
- " The board is not aware of any legal basis which would empower it to instruct the opposition division to correct the minutes. [] The minutes fall under the exclusive remit of the department before which the oral proceedings took place".
Reasons for the Decision
2. Remittal (Article 111(1) EPC)
2.1 The appellant requested that, if the main request were held not allowable, the case be remitted to the opposition division for further examination of the first to seventh auxiliary requests as regards the ground for opposition according to Article 100(b) EPC. The appellant argued that the case had to be remitted, since a substantial procedural violation had occurred before the opposition division because this ground for opposition was, according to the appellant and contrary to the statement in point 3 of the minutes of the oral proceedings before the opposition division ("The chairman stated that the parties should present their arguments in detail and thoroughly since this objection applied equally to all pending requests"), only discussed in relation to the main request (see also the appellant's request for correction of the minutes dated 6 March 2012). The appellant argued that its right to be heard in respect of this ground in relation to the auxiliary requests had thereby been violated.
