T 0520/01 vom 29.10.2003

Re-introduction of grounds in appeal proceedings - not allowed
Claims not supported by the description
Patent revoked
Referral to the Enlarged Board of Appeal (no) - a decision on the appeal could be rendered without an answer to the proposed question

1. Where a ground of opposition, here insufficiency, was expressly not maintained in opposition oral proceedings by the only party which had relied on the ground and the Opposition Division did not deal with the ground in their decision the re- introduction of the ground in appeal proceedings constitutes a fresh ground which, following Opinion G 10/91 by analogy, requires the permission of the proprietor.
2. Where a ground, here novelty, was substantiated within the opposition period and the party which raised the ground neither appears at the opposition oral proceedings nor withdraws the ground the Opposition Division has to deal with the ground in their decision. The ground may then be taken up by other appellants in subsequent appeal proceedings.
3. A request for a referral under Article 112 EPC to the Enlarged Board of Appeal must be refused if a decision can be reached on the basis of grounds other than those grounds to which the proposed question was related, cf. decision G 3/98, point 1 of the reasons.