Résumé de Article 13(2) RPBA pour la décision T1223/23 du 01.07.2025

In T 1223/23 the opposition division had come to the conclusion that claim 1 of the patent as granted was not new in view of document D2. During the oral proceedings before the board, the appellant (proprietor) submitted for the first time in appeal proceedings that D2 based on a new interpretation could not be relevant to the novelty assessment of the subject-matter of claim 1. The respondent (opponent) requested that this fresh argument not be admitted into the appeal proceedings, because it was raised at a very late stage and should have been submitted earlier. The board first pointed out that, while the appellant's submission did not introduce any new facts or evidence, Art. 12(3) RPBA made clear that arguments also formed part of a party's case, and that a late-filed argument could therefore qualify as an "amendment" under Art. 13(2) RPBA, the admission of which being at the board's discretion. The board then mentioned the case law denying discretion to disregard (certain) late arguments in view of the wording of Art. 114(2) EPC (T 1914/12 and the decisions cited therein as well as T 1617/23 concurring with this line with certain reservations) but could leave open whether this case law was persuasive. The board held that even on the assumption that the board had discretion not to admit a late-filed argument, there would be no justification to exercise it here. Once the parties had submitted the relevant claim requests and documents and presented their arguments on them, the board had to resolve a number of legal issues falling under its judicial responsibility. These included the interpretation of the claims, the construction of the relevant (prior-art) documents and the proper assessment of their disclosure from the perspective of a skilled person in the respective field. If the board became aware, even at a late stage, that its previous interpretation of a (prior-art) document or a claim from the perspective of the skilled person, or its understanding of a prior-art technical teaching, was wrong, in the present board's view, it had a duty to correct that error. This applied irrespective of whether the new understanding arose from the board's own analysis or from a party's new submission. As explained by the board, in the present case, to disregard the appellant's argument and keep its original understanding of the disclosure in D2 would have forced the board to base its decision on an interpretation which it considered erroneous. The procedural framework of the appeal proceedings aimed to secure efficient and fair proceedings, but also to guarantee that the decisions, based on the facts and evidence adduced, were substantively correct. In other words, a (technically) correct interpretation of a prior-art document took precedence over formal or procedural considerations here. For this reason, once convinced by the appellant's submission, the board adopted it in its assessment of the present case. In view of the above, the new argument was admitted into the appeal proceedings and the respondent's request in that regard rejected. The case is remitted to the opposition division for further prosecution.