c) Moyens non soulevés et maintenus de manière valable dans le cadre de la procédure de première instance 

Catchword:

To judge whether a claim request was admissibly raised in opposition proceedings within the meaning of Article 12(4) RPBA 2020, a board has to decide whether the opposition division should have admitted the claim request, had a decision on admittance been required. If so, the claim request was admissibly raised (reasons, point 7). As a rule, claim requests filed in reply to the notice of opposition within the time limit set under Rule 79(1) EPC should have been admitted by the opposition division and were thus admissibly raised. Not admitting these claim requests and thus considering them not to have been admissibly raised must be limited to truly exceptional situations (reasons, points 7.1.2 and 7.1.3). Whether or not a claim request filed after the expiry of the time limit set under Rule 79(1) EPC and before the expiry of the time limit set under Rule 116(1) EPC is to be considered filed in due time depends on whether this request was submitted in direct and timely response to a change to the subject of the proceedings introduced by the opponent or the opposition division. Opposition divisions have the discretion to not admit any late-filed claim request and therefore the board has the discretion to consider a late-filed claim request not to have been admissibly raised (reasons, points 7.2.4 and 7.2.6). The criteria generally used by the boards of appeal when exercising their discretion to admit or not a party's submission in appeal under the Rules of Procedure 2020 may also be considered when deciding whether or not a late-filed claim request submitted after the expiry of the time limit set under Rule 79(1) EPC and before the expiry of the time limit set under Rule 116(1) EPC should have been admitted by the opposition division and was thus admissibly raised. However, when taking this decision, in view of the administrative character of opposition proceedings, these criteria should be used by the boards in a more lenient way than for a party's submission filed during appeal proceedings. In fact, to properly defend its patent, a patent proprietor must in principle be permitted to redefine its fallback positions in terms of auxiliary claim requests also at a late stage of opposition proceedings (reasons, points 7.2.7 and 7.2.10).