Zusammenfassung von EPC2000 Art 111 für die Entscheidung T2916/19 vom 19.04.2023

In T 2916/19 the appellant raised objections of lack of novelty and of lack of inventive step against claim 1 of the main request. The board noted that an objection had already been put forward during the opposition proceedings but that the opposition division had not deemed it necessary to deal with it. It was unclear to the board why and on which basis the appellant's objection of lack of inventive step of claim 1 of the main request had not been dealt with in the decision under appeal. It found said decision suffered from a substantial procedural violation in that the opponents' objections and arguments were not properly taken into account. According to established case law, such a substantial procedural violation was to be equated with a fundamental deficiency in the sense of Art. 11 RPBA 2020, and the board accordingly remitted the case to the opposition division for further prosecution (Art. 111(1) EPC). The respondent requested that the board instruct the opposition division i) to deal with the present case in an accelerated manner and ii) to limit the further discussion to the documents on file in the event that the case was remitted to the opposition division. The request was made in view of the filing date of the application on which the patent in suit was based (2007) and the fact that this would be the second remittal to the opposition division. The board considered that the question of when or at which pace the case was to be dealt with by the opposition division was a managerial decision to be taken by the department of first instance; the board was not empowered to impose any timeline/time constraints to the department of first instance which would be in charge of the case. The board noted that the respondent could at any time request accelerated proceedings under the PACE programme, which may be done both at the opposition and appeal stages. The board further considered it could not, in advance, decide to exclude from consideration any unknown and unforeseeable facts, pieces of evidence and/or submissions. Therefore, the respondent's request for the board to instruct the opposition division to limit the further discussion to the documents on file was rejected.