Zusammenfassung von EPC2000 Art 111(1) für die Entscheidung T1731/19 vom 05.09.2023

In T 1731/19 the board decided not to take auxiliary requests 1 to 3 into account because the respondent failed to substantiate these requests in its reply to the appellant's statement of grounds of appeal. These requests were identical to auxiliary requests 1 to 3 submitted during the opposition procedure. Nevertheless, when resubmitting these requests with its reply to the statement of grounds of appeal, the respondent had omitted any comment on why the amendments to the independent claims of the respective auxiliary request might overcome the outstanding objections and therefore might justify amending the impugned decision. The respondent had requested that their request for remittal be dealt with before a decision was taken on the issue of admittance of the auxiliary requests. As justification for this prioritisation of the request for remittal, the respondent had submitted that in the event of a remittal to the opposition division, the requests that had been filed in the opposition proceedings, thus also including auxiliary requests 1 to 3, could then be further pursued since they were part of the opposition proceedings. The board explained that according to Art. 111(1) EPC the board may either exercise any power within the competence of the department which was responsible for the decision appealed or remit the case to that department for further prosecution. It was clear from this provision that it is up to the board to decide in which form it exercises its competences. This meant that there was no right of the parties to choose in which form the board should exercise its competences under Art. 111(1) EPC. Thus, the board was entitled to decide on the issue of admittance of the auxiliary requests without being bound to the respondent's request for prioritisation of the request for remittal. The board further set out that a case can only be remitted if it is clear on what basis the opposition division should further proceed. In the present case, the board decided on the respondent's main request and did not admit auxiliary requests 1 to 3 into the proceedings. The board also dealt itself with auxiliary request 4. Thus, there were no requests left on the basis of which the opposition division could proceed. The request for remittal was therefore rejected.