Résumé de EPC2000 Art 112a(2)(c) pour la décision R0006/20 du 10.07.2023

In R 6/20 the petition for review was based on Art. 112a(2)(c) EPC, i.e. on the grounds that a fundamental violation of the right to be heard (Art. 113(1) EPC) had occurred, whereas the petitioner relied on two asserted procedural defects. The Enlarged Board (EBA) thus assessed whether the decision under review had been tainted by a fundamental violation of the right to be heard for - not addressing all the facts and arguments (first defect) and/or - the way in which the facts and arguments relating to non-admittance of the submissions on public prior use were addressed (second defect). As to the first asserted procedural defect, the petitioner indicated that the board had only addressed admittance of the submissions on public prior use, without even discussing whether these submissions had been prima facie relevant for assessing the question of novelty of the subject-matter of claim 1 of the patent as granted. Referring to R 8/15, the petitioner held that, in order to comply with the right to be heard, the decision would have had to have made it possible to conclude that the board had "substantively considered" the submissions on public prior use. The EBA expressed the view that the requirement that "the Board substantively considered those submissions" (catchword of R 10/18, point 1, second paragraph) should be given the meaning that "the Board considered the contents of those submissions", with this consideration comprising matters pertaining to admittance of facts, evidence and requests, and/or relating to substantive law, i.e. the merits of a case. According to the EBA, the board had complied with the "substantively considered" requirement interpreted this way, especially since the board applying Art. 12(4) RPBA 2007 had concluded that the submissions on public prior use should have been filed in the proceedings before the opposition division. Given that the submissions on public prior use had not been admitted, there had been no point in discussing their merits, i.e. whether the respective evidence had been novelty- destroying. The board had thus complied with the "substantive consideration" requirement of R 8/15 as affirmed in R 10/18, both in respect of admittance and merits. With regard to the second asserted procedural defect, the EBA analysed its case law on the review of substantive law under Art. 112a EPC and recalled the principle set out therein according to which the petition for review may, under no circumstances, be a means to review the application of substantive law. The EBA had no competence under Art. 112a EPC to examine the merits of the decision and to go into the substance of a case. In the context of (non-) admittance, the EBA recalled that it could not be considered in review proceedings whether to admit a new request (R 10/11) or a new document (R 1/13). Referring to R 17/10, the EBA emphasised that admitting late-filed documents and/or other evidence was a matter for the board's discretion and, therefore, as such not subject to review under Art. 112a EPC, unless the exercise of discretion was arbitrary or manifestly illegal (R 10/11), thereby involving a fundamental violation of the right to be heard (R 9/11, R 17/11). Under the essence of this case law, the decision to not admit must be neither arbitrary nor manifestly illegal. The EBA held that these criteria were met in the case in hand: first, the applicable legal provision of Art. 12(4) RPBA 2007 complied with both the principle of ex officio examination and the right to be heard, and, second, so did its application in the case in hand. The EBA emphasised that Art. 12(4) RPBA 2007 was in line with Art. 114(1) and 113(1) EPC. Non-compliance with the admittance criterion of Art. 12(4) RPBA 2007, correctly interpreted in a specific case, in itself justified not admitting submissions filed outside of a time limit, without the requirement to assess in addition prima facie relevance of the submissions or the state of the proceedings (procedural efficiency). Furthermore, in the case in hand, this provision had not been applied in a way that was arbitrary or manifestly incorrect. The EBA concluded that none of the asserted defects had been established and the asserted fundamental violation of the right to be heard based thereupon was clearly unfounded. The EBA thus rejected the petition and refused the remaining requests.