T 1789/22 (HCMV complexes/GLAXOSMITHKLINE) vom 12.12.2024

Appeal decision - remittal to the department of first instance (no)
Amendment occasioned by ground for opposition - (yes)
Amendment occasioned by ground for opposition - amendments allowable (yes)
Amendment to appeal case - justification by party (no)
Examination of own motion - appeal proceedings
Inventive step - (yes)

1. For considerations about the object of appeal proceedings and the rights of a non-appealing party, see Reasons, points 1 to 4. The provisions of Article 107, second sentence, EPC guarantee a non-appealing party the right to participate to pending appeal proceedings. However, they do not provide it an autonomous right to have requests which go beyond the scope of the appeal as defined by the appellant's statement of grounds of appeal, decided by the board (as a direct consequence of G 2/91, Headnote). By not filing an appeal, a non-appealing party has not contested the findings of the opposition division, beyond the framework of the appeal filed by the appellant.
2. A proprietor cannot be expected to file an amended description in appeal proceedings until an allowable set of claims is found. The lack of an adapted description constitutes no obstacle to the admittance of an amended set of claims into the appeal proceedings (see Reasons points 6.3 and 6.4).