Thursday, 20 June 2013

T 1439/09 – Disregarded Statements

In this case Board 3.3.08 confirmed decision T 146/07 where anonymous third party observations had been found not to be admissible.

[1.6] Anonymous, unsigned third party observations were filed during the appeal proceedings.

[1.7] In decision T 146/09 (sic), this board, in a different composition, held that the identification of a third party in the context of third party submissions in opposition proceedings was particularly important in order to allow the competent organ of the EPO to verify whether the observations were indeed filed by a third party rather than by a party to the proceedings. Otherwise, a party might be tempted to submit late observations and/or documents by means of anonymous third party observations in order to avoid negative procedural consequences such as apportionment of costs. Moreover, unsigned submissions by a party to the proceedings were deemed not to have been filed if, after a communication according to R 50(3) has been sent out by the EPO, they are not signed in due time. Since unsigned anonymous third party observations did not allow the EPO to send out such an invitation, they necessarily remained unsigned. As a consequence, they were deemed not to have been filed.

[1.8] In the present case, the board sees no need to depart from this line of reasoning. Therefore, the anonymous observations filed under A 115 are deemed not to have been filed and are disregarded by the board.

Should you wish to download the whole decision, just click here.

The file wrapper can be found here.

NB: T 146/07 was discussed on this blog (here). You might also want to have a look at T 1336/09, which deals with ex parte proceedings.


MaxDrei said...

What caught my eye was para 1.10 to 1.12 of the Reasons, where Oppt tried belatedly a "poisonous divisional" Art 54(3) novelty attack. The Board finessed out of it by simply declining to admit it.

Shrugging it off like that though is not going to work when Opponents run that attack from a date within the 9 month Opposition period.

As they increasingly will, from now on, won't they?