tag:blogger.com,1999:blog-2352189175211648260.post9123068880559826762..comments2023-10-24T14:45:41.342+02:00Comments on K’s Law: R 19/09 – You Need A Causal Linkorhttp://www.blogger.com/profile/07992102028406713066noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-2352189175211648260.post-2180101394386608212010-05-31T23:57:53.810+02:002010-05-31T23:57:53.810+02:00Thanks. Your remark made me realize that I should ...Thanks. Your remark made me realize that I should have added a link to the decision under consideration (T 1874/06). I have repaired this deficiency.Oliverhttps://www.blogger.com/profile/14069112323977591767noreply@blogger.comtag:blogger.com,1999:blog-2352189175211648260.post-45835444706694959312010-05-30T02:43:53.142+02:002010-05-30T02:43:53.142+02:00Given that the reasoning in point 5.5 was independ...Given that the reasoning in point 5.5 was independent of a possible unexpected effect, I do not think there was a "procedural deficiency" at all. Art. 113(1) EPC only requires that the appellant has been given the opportunity to present its comments on the grounds or evidence on which the decision is based. Point 5.5.1 only refuted a counterargument.<br /><br />If it was procedurally required to give the appellant an opportunity to comment on the refutation of any counterargument, the appellant could easily create an endless loop. But in my view there is no such procedural requirement. The EBA seems to say there is, though (even though it does not consider such a violation "fundamental").<br /><br />On the other hand, if the fact that there was no unexpected effect had been important for the reasoning of point 5.5 (e.g. if point 5.5 had implicitly relied on the absence of an unexpected effect without giving proper reasons), then the appellant in my view should have been given the opportunity to present its comments on both the (parallel) grounds for which the Board did not acknowledge the existence of that effect, unless one was clearly presented as an obiter. This would be similar to a case in which an application is refused both for lack of clarity and for lack of inventive step, without respecting the right to be heard for one of these grounds (resulting maybe not in a "fundamental" violation but in a violation nonetheless, and if I'm not mistaken most of the time a "substantial" violation).Anonymousnoreply@blogger.com