In an appeal from an opposition decision that maintained the patent, an EPO board refused to admit an auxiliary request that had been filed by the proprietor during opposition and formally re-entered with the initial response to the grounds of appeal. Other than implicitly through arguments about the main request, the response failed to take position on the auxiliary request. The board held that, because of the failure to substantiate the auxiliary request, the rules of procedure of the boards of appeal assigned it to the discretion of the board to admit or not admit the auxiliary request.
A full summary of this case has been published on Kluwer IP Law.
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