Monday, 2 July 2012

T 89/10 – Copy & Paste

Quite recently (here) we have seen that it can be dangerous to file a statement of grounds of appeal that only repeats the arguments brought forward before the first instance. This does not mean that one may not copy and paste the major part of the objections, as the present decision shows.

[1] It is not contested that the greatest part of section 4 (and also of section 3) of the statement of the grounds of appeal repeats exactly the arguments of the last letter submitted by the Opponent in advance of the oral proceedings before the Opposition Division (OD), with the exception of some slight adaptation of the text to the subject-matter of the claims found to comply with the requirements of the EPC in the decision under appeal. However, the statement of the grounds of appeal contains also an introduction (section 1) analysing specifically the subject-matter of the patent as maintained by the OD and a section 6 addressing specifically the reasoning of the decision under appeal and referring back to the arguments presented in section 4 (see last paragraph in section 6.2).

Therefore, it is clear from the statement of the grounds of appeal that, according to the Appellant’s opinion, all these objections already raised before the OD still apply to the claims allowed by the OD and form part of the Appellant’s case.

The fact that great part of these objections are copied from one submission filed during the first instance proceedings does not detract from the alleged validity of these arguments, which are implemented by specific sections (1 and 6) addressing the claims as maintained by the OD and parts of the decision under appeal. Therefore, the Board finds that the objections forming the appeal case are clear and fully understandable by reading the statement of the grounds of appeal.

The present case thus is different from the case T 349/09, invoked by the Respondent, in which the statement of grounds of appeal was prepared by simple editing of the earlier notice of opposition so as, for example, to refer to claims numbered as in the request allowed by the OD, and in which the Opponent repeated exactly entirely its statement of opposition and it was not possible to elicit from the submitted text which objections could still apply to the maintained claims without an extensive work of comparison (see points 1, 4, 8, 10 and 13 of the reasons).

Therefore, the Board concludes that the appeal complies with the requirements of A 108 and R 99(2) and is admissible.

To download the whole decision, click here.

The file wrapper can be found here.