1.3.3 Opportunity to submit comparative experiments

The appellant (patent proprietor) in T 2415/09 argued that its right to be heard had not been respected during opposition proceedings. The new documents and experiments submitted by the respondent had only been transmitted to the appellant six weeks before the oral proceedings before the opposition division. The board said it could not comment on the exact period needed to conduct comparative experiments. Even if the periods specified in R. 132(2) EPC did not apply in the case in point (R. 116(1) EPC), they showed that a party could not be required to conduct comparative experiments in a period as short as six weeks. The board concluded that the opposition division had failed to respect the appellant's right to be heard.

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