T 1732/10 () of 19.12.2013

European Case Law Identifier: ECLI:EP:BA:2013:T173210.20131219
Date of decision: 19 December 2013
Case number: T 1732/10
Application number: 03738853.5
IPC class: B05B 15/08
B05B 12/04
B05B 1/32
Language of proceedings: EN
Distribution: B
Download and more information:
Decision text in EN (PDF, 450.016K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: DEVICE FOR THE APPLICATION OF A FLUID
Applicant name: Eftec Europe Holding AG
Opponent name: ABB PATENT GmbH
Dürr Systems GmbH
Board: 3.2.07
Headnote: -
Relevant legal provisions:
Rules of procedure of the Boards of Appeal Art 12(1)(b)
Rules of procedure of the Boards of Appeal Art 12(2)
Rules of procedure of the Boards of Appeal Art 13(1)
Rules of procedure of the Boards of Appeal Art 13(3)
Rules of procedure of the Boards of Appeal Art 15(6)
Keywords: Late-filed main and auxiliary requests 1 to 10 - not admitted
Reinstating a withdrawn request as late as at the oral proceedings-late amendment of the case, not admitted
Catchwords:

Not reacting in substance to the appeal of the opponent, but waiting for the Board's preliminary opinion before any substantive reaction is filed, is regarded as an abuse of procedure. It is contrary to the equal distribution of rights and obligations upon both sides in inter-partes proceedings and to the principle that both sides should set out their complete case at the outset of the proceedings. Both principles are clearly established by the Rules of Procedure of the Boards of Appeal.

This is all the more so if the substantiation for all the requests, which were filed after summons to oral proceedings have been sent, is filed only shortly before the oral proceedings before the Board. Such requests – which are not self-explanatory - are considered by the Board as submitted only on the date of their substantiation. Such very late requests are contrary to procedural economy, do not take account of the state of the proceedings and cannot be reasonably dealt with by the Board without adjournment of the proceedings or remittal to the department of first instance, contrary to Article 13(1) and 13(3) RPBA.

Where such very late requests take up subject-matter only available from the description, it cannot automatically be assumed that it was covered by the initial search, nor that it is automatically the responsibility of the opponent to perform such a search (see points 1.1 to 1.8).

Cited decisions:
T 0888/02
T 1621/09
Citing decisions:
T 0447/09
T 1890/09
T 0217/10
T 0013/11
T 0664/11
T 1134/11
T 1273/11
T 1836/12
T 1914/12
T 2288/12
T 0122/13
T 0964/13
T 0568/14
T 1784/14
T 2101/14
T 2068/15
T 1519/17

16 references found.

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Offical Journal of the EPO

Case Law Book: IV Divisional Applications

General Case Law