A change in the composition of the Examining Division is legally allowed. This does not jeopardize the right to be heard and to a fair trial.
The ‘equality of arms’ is not hampered by the introduction in a late stage of examination and in particular during the oral proceedings before the Examining Division, of new prior art on the subject of common general knowledge for use in Art. 114 EPC.
Case date: 15 February 2021
Case number: T 2344/16
Court: European Patent Office (EPO), Board of Appeal
A full summary of this case has been published on Kluwer IP Law.
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