4.3. Erste Stufe des Konvergenzansatzes – Vorbringen in der Beschwerdebegründung und Erwiderung – Artikel 12 (3) bis (6) VOBK 2020

Catchword:

Prima facie allowability under Article 123(2) EPC of a late filed amended claim request may be a valid criterion to be used by the opposition division when deciding on the admittance of this claim request. However, using this criterion, to object for the first time at oral proceedings to a feature of the late-filed claim request that was already present in higher ranking claim requests and had never been objected to before, not even when deciding on the allowability or admittance of those higher-ranking claim requests, goes against the principles of fairness and good faith (see point 2.6.11 of the reasons).

Catchword:

The principles expressed in Article 12(6) RPBA 2020 for the admittance of non-maintained or non-admitted requests may be considered in the exercise of discretion to admit amendments based on such requests under Article 12(4) RPBA 2020.

Catchword: 

In order to substantiate an objection in the appeal proceedings which the Opposition Division did not consider convincing, it is necessary to provide specific reasons why the finding and the reasoning in the decision under appeal is supposedly incorrect with regard to this objection (Reasons 2.2.2-2.2.11). As a rule, in appeal proceedings general references to submissions made in the proceedings before the departments of first instance are not taken into account due to a lack of substantiation. Attaching the notice of opposition to the statement of grounds of appeal is to be considered equivalent to such a general reference to previous submissions (Reasons 2.2.13-2.2.14). An objection is to be considered to have been validly submitted only at the time on which sufficient substantiation is provided (Reasons 2.2.17).