Zusammenfassung von Art 13(1) RPBA 2020 für die Entscheidung T1303/18 vom 21.11.2022

See also abstract under Article 87(1) EPC. In T 1303/18 the board did not admit the appellant's defence relying on entitlement to partial priority into the proceedings pursuant to Art. 13(1) RPBA 2020, Art. 12(2), (4) RPBA 2007. The appellant (proprietor) argued for the first time after the filing of the grounds of appeal and replies, and before the summons to oral proceedings was issued that, should the priority from D49 be considered invalid, the subject-matter of claim 1 as granted should at least be entitled to a partial priority from D49 in accordance with decision G 1/15. The board observed that an objection as to the validity of the earliest priority claimed from D49 had already been raised by the respondents in their notices of opposition. Decision G 1/15 had been published in the Official Journal of the EPO before the oral proceedings were held before the opposition division. Therefore, the appellant's defence claiming a right to partial priority could and should have been presented before the opposition division or included at the latest in the statement of grounds of appeal. The appellant argued with reference to T 2988/18 that this defence did not constitute an amendment of its appeal case. It only concerned interpretation of law by means of an argument based on a decision of the Enlarged Board of Appeal. Therefore, the appellant was allowed to make this defence at any point during the proceedings. The board held that, contrary to the appellant's view, the defence by which a right to partial priority was invoked was not merely a presentation of a new argument pertaining to the interpretation of law but comprised a new allegation of fact. Indeed the appellant had asserted that priority application D49 directly and unambiguously disclosed in an enabling manner part of the subject-matter of claim 1 as granted, and specifically that claim 1 as granted encompassed this part as an alternative subject- matter by virtue of a "generic "OR"-claim" within the meaning of decision G 1/15. The board considered that the submitted defence would have involved a new factual assessment of the subject-matter of claim 1 as granted and of priority application D49, namely as to precisely which part of claim 1 it was that allegedly enjoyed partial priority and where it was disclosed in D49. Decision T 2988/18, invoked by the appellant, could not support the appellant's submission. In that decision the entrusted board had concluded that the new argument at issue was not an amendment of the appeal case since it only concerned how the interpretation of Art. 123(2) EPC provided by the Enlarged Board of Appeal in G 1/93 applied to the facts of the case at issue. Therefore, contrary to the current case, no new factual allegations were derived from the new argument submitted. Hence, the rationale developed in T 2988/18 was not applicable to the case at hand. This was also consistent with the explanatory remarks to the RPBA 2020 (supplementary publication 2, OJ 2020, page 57). The appellant's defence did not "concern only the interpretation of the law" but constituted a new allegation of fact. The defence relying on partial priority therefore constituted an amendment to the appellant's appeal case within the meaning of Art. 13(1) RPBA 2020. The board decided not to admit it into the proceedings, as the required new factual assessment would have been complex and the appellant had provided no justification for this late amendment.