The Board agrees with the [patentee] that the statement of the grounds of appeal contests the inventiveness of the claimed subject-matter by basing itself on a combination of documents which cannot manifestly legally succeed.
In fact, one of these documents, i.e. D1, having been published after the filing date of the patent in suit, can only be state of the art in virtue of A 54(3) and is not a state of the art which can be used in discussing inventive step.
However, the fact that the appellant’s arguments are erroneous and cannot succeed has no bearing on the admissibility of the appeal as the statement of the grounds of appeal contests with facts and arguments the reasoning of the decision under appeal and it thus specifies the legal and factual reasons on which the case for setting aside the decision is based.
Therefore, the appeal complies formally with the requirements of A 108, third sentence, and R 99(2). Moreover, it is undisputed that the appeal complies with all the other requirements of A 106 to 108. [1]
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