[2.3] During oral proceedings before the Board the [opponent] filed a coloured copy of a table summarising the experimental results of Tables 1-4 of the patent in suit (document D23). The [patent proprietor] requested the Board not to admit this very late filed document.
This document is nothing more than a summary of results already present in the contested patent and was merely submitted for enhanced comprehensibility of the [opponent’s] arguments. It did not confront the [patent proprietor] with new facts or new evidence. Merely representing a summary of the data of the patent in suit, it can not be considered either as an attempt to surprise the [patent proprietor] or the Board.
Furthermore, a black and white copy of this table had already been filed in the procedure before the first instance in support of the [opponent’s] arguments concerning inventive step, and in its reply to the grounds of appeal the [opponent] explicitly referred to its submissions before the first instance. Hence, the Board decided to admit this document into the procedure (Article 13(1) and 13(3) RPBA).
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2 comments:
Hello Oliver,
WIPO is currently reflecting on allowing color drawings (and photos) in PCT applications, see
http://www.wipo.int/edocs/mdocs/pct/en/pct_wg_3/pct_wg_3_09.pdf.
Patent applications will soon become works of art, but this will lead to a broad new field of 123(2) issues: "the applicant should not have amended colors when entering EP phase".
Your remark on A 123(2) is stimulating to say the least. As a matter of fact, changes of colour are quite frequent during oral proceedings before the Boards. A great number of attorneys have been observed to have changed colour during the proceedings. Well-known variations include going as red as a beetroot or, conversely, adopting more pale colours. ;-)
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