T 2120/18 vom 02.02.2022

Substantial procedural violation - (no)
Remittal to the opposition division for further prosecution
Remittal - (no)
Novelty - claim 1 as granted
Novelty - (no)
Auxiliary request could and should have been filed during the opposition proceedings - admitted (no)

1. An opposition division's rejection of a request for extension of the time limit indicated in its communication under Rule 79(1) EPC does not terminate the opposition proceedings. Therefore, a patent proprietor is in a position to respond to the notice of opposition beyond the expired time limit or, at least, request the rejection of the opposition as well as oral proceedings. The patent proprietor must anticipate that an opposition division may issue its decision after expiration of the time limit (see Reasons 4.5, 4.6 and 4.9).
2. There is no legal basis for a duty on the part of the opposition division to notify the patent proprietor in advance of its intention to reach a decision, even if that decision concerns the revocation of the patent (see Reasons 4.8, 4.10 and 4.11).
3. If a patent proprietor chooses not to file any submissions during the opposition proceedings but to present them only with its statement of grounds of appeal, this amounts to bringing an entirely fresh case in appeal proceedings. This is at odds with the primary object of the appeal proceedings to review the decision under appeal in a judicial manner. Consequently, a board has the discretion under Article 12(4) RPBA 2007 not to admit the patent proprietor's defence submissions into the appeal proceedings. This does, however, not necessarily lead to revocation of the patent. The decision under appeal is still to be reviewed by the board, which might overturn the impugned decision, for example if it is not convinced by the reasons given by the opposition division or in the event of a substantial procedural violation (see Reasons 5.5 and 5.6).