Abstract on Article 113(1) EPC for the decision T0842/24 of 21.05.2026

In T 842/24 the opponent submitted that the plasticizer insufficiency objection ("the Objection") had not been taken into account by the opposition division. In the opponent's view, this constituted a violation of its right to be heard justifying a remittal to the opposition division and the reimbursement of the appeal fee. The patent proprietor, however, argued that no procedural violation had occurred in this respect, since the Objection had not been actively maintained in the oral proceedings.

The board indicated that the Objection had been raised by letter of 13 July 2023 and addressed again by letter of 16 February 2024. Although the Objection had not been specifically addressed in the opponent's subsequent letter of 28 March 2024, that letter stated at the end that all the arguments put forward in the written submissions of 16 February 2024 were highly relevant and therefore had to be taken into account by the opposition division. The board acknowledged that the minutes of the oral proceedings did not indicate that the Objection had been discussed. In the board's view, however, not addressing during the oral proceedings an objection submitted in writing did not necessarily imply that the objection had been withdrawn. This was because written submissions formed the basis of EPO proceedings and were complemented, where necessary, by an opportunity for a party to present and argue its case orally (G 4/95, G 1/21). Parties had the opportunity to repeat or expand upon some of the written submissions they considered necessary for defending their case, but were under no obligation to address all written submissions orally.

The patent proprietor was of the opinion that decision R 17/11 was relevant. The board held that, in that case, the Enlarged Board had not concluded that the absence of a petitioner's argument about the status as prior art of a document during the oral proceedings necessarily implied that this point was no longer maintained by the petitioner, but only that the technical board may have gathered from the discussion on that document that this point was no longer maintained.

The board found that whether an objection had been withdrawn or abandoned depended on the particular context underlying the contested decision. Decision T 526/21, cited by the patent proprietor, concerned a situation where the discussion during the oral proceedings about the choice of the closest prior art had not concerned two further documents on the basis of which additional inventive step attacks had been submitted in writing. In that situation, it had been considered that those attacks had not been maintained, as those two further documents had no longer been argued to represent a possible starting point for the assessment of inventive step.

According to the board, however, nothing in the debate during the oral proceedings in the present case implied that the opponent had not maintained the Objection. On that basis, the opposition division's failure to give due consideration to the Objection which, according to the opponent's submissions was an essential aspect of the alleged insufficiency of disclosure of the subject-matter of claim 1, constituted a substantial violation of the opponent's right to be heard in contravention of Art. 113(1) EPC.