Posted: April 1st, 2010
EPO, Enlarged Board of Appeal, 22 March 2010, Case No R 9/09
This petition for review concerns decision T71/06 dismissing the appeal of the patent proprietor against the decision of the Opposition Division to revoke its patent. The petition for review was filed on the grounds of Article 112a(2) (c) and (d), i.e. "fundamental violation of the right to be heard" and "any other fundamental procedural defect defined in the Implementing Regulations"
Three procedural violations were addressed by the petitioner. First of all, the Board had refused to postpone the oral proceedings for additional preparation time. Secondly, a late filed document was admitted. And thirdly, extra time to carry out comparative experiments (relating to the late filed document) was refused.
The petition never made it to the five-member stage, since the Enlarged Board of Appeal dismissed the petition as "clearly inadmissible" on the ground that no objection under Rule 106 EPC was raised during the proceedings before the Technical Board of Appeal. This, according to the Enlarged Board, must be done timely, explicitly and as a separate objection (i.e., before the debate on a substantive ground for opposition is closed), in order to give the Board an opportunity to revise the alleged procedural defect and to safeguard the petitioner's right under article 112a EPC. The only exception is where such an objection could not be made, but this has to be substantiated by the petitioner. An oral argument made by an accompanying person after closure of the debate on inventive step, as was the case here, according to the Enlarged Board does not qualify as an objection pursuant Rule 106 EPC. The EBA continues to apply its strict (or rigid) approach in interpreting Rule 106 EPC as established in R 4/08 and confirmed in R 7/08.
As a last point, the Enlarged Board confirms that the time limit for filing a petition for review expires two month after notification of the decision in writing, which is the becoming available of the written decision (i.e. the grounds for the decision), taking into account the "10 day rule" of notification by post.
Read the decision (in English) here.