EP 2 430 207 B1 relates to a process for manufacturing a coated metal plate having an improved appearance.
Brief outline of the case
Opponent I attacked 1 all claims and Opponent II only attacked claims 8-11.
The oppositions were rejected and both opponents appealed.
The bord decided maintenance according to AR1 filed in appeal.
Following the announcement at a first OP of the admission late filed lines of attack based on Art 100(b), the proprietor requested a postponement of the OP.
For both opponents the postponement of the OP was unjustified.
The proprietor wanted that statements of the opponents to be forbidden in appeal as they were, in its eyes, contrary to what was they alleged in opposition.
The proprietor’s point of view on the admissibility of the late filed attack
At the second OP, the proprietor reiterated its request, not to admit the line of attack of insufficient disclosure relating to the degree of the polynomial of the parameter Wa0.8 and the related documents that had been admitted at the first OP before the board.
It put forward the same arguments that had already been discussed in the first OP, according to which opponents I and II could not maintain in appeal proceedings a position contrary to that which they had maintained in the opposition proceedings on this subject relating to the waviness parameter Wa0.8, which Opponents I and II had considered to be part of the general knowledge of a person skilled in the art.
The proprietor requested that a question be submitted to the EBA under Art 112.
In the question to be referred to the EBA, the proprietor quoted decision R 3/18 in which, in its view, the latter had admitted the principle of estoppel and that its application could be the subject of a referral to the EBA under Art 112.
The board’s decision on what was decided at the end of the first OP
The interim decision to admit the new line of attack and the related documents was taken and announced to the parties at the first OP after they had been duly heard on this point.
This interim decision can therefore no longer be reviewed during the appeal proceedings, unless the board reopens the debate that led to this decision following an objection raised against a procedural defect that occurred during the appeal proceedings.
The fact that, at the end of the proceedings, a final decision is taken on the appeal as a whole does not allow the intermediate decisions taken during the proceedings to be called into question once they have been announced to the parties.
If this were the case, the parties could reopen all the debates at any time in accordance with their wishes, thereby hindering the smooth running of the debates and theoretically postponing indefinitely a final decision by the board.
The board noted that the principle of estoppel was not relevant to the interim decision in question, as the board saw no change in the position of Opponent II between the opposition and appeal proceedings, nor indeed of opponent I. in view of the way the proceedings were running, the board held that de facto the referral to the EBA was unnecessary.
Comments
Binding character of the admissibility of a submission
The present decision makes clear that a declaration of admissibility of a submission, late or not, is, in principle, binding for the deciding body.
When a deciding body of first instance admits a submission, it is boils down to a binding decision which cannot be revised by said body without committing a SPV.
However, a board can reopen the debate which led to a decision following an objection raised against a procedural defect occurring during the appeal proceedings. This is a relatively rare occurrence.
Estoppel at the EPO
Although there was no effective estoppel in the present case as the opponents had not changed their lines of attack, this notion does apparently not need to be introduced at the EPO.
Under the EPC the notion of party disposition is one of the most important ones. If a party feels the necessity to say in appeal something contrary to what it said in opposition, one of the statements is most probably incorrect. For reasons of coherence, it is certainly better not to contradict oneself.
R 3/18 bears nothing in common with the present case
In R 3/18 the petitioner argued that there was an estoppel situation as the time limit for filing a statement of grounds of appeal could not be extended.
In the absence of a decision of the EBA under Art 112 on this topic, the EBA held that when dealing with a petition for review, it is not vested with the power to give an answer to the question whether the board in the decision under review correctly dealt with the estoppel situation as defined by the petitioner.
The petition was thus clearly not admissible.
Last but not least, the board also confirmed that in case of a plurality of opponents, one opponent can use the evidence and arguments of another one and vice-versa.
T 250/20 https://www.epo.org/fr/boards-of-appeal/decisions/t200250fu1
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