EPO Board of Appeal allows late (claim) construction project

This is just a short post on an interesting new development on exceptions to the EPO’s strict approach to admissibility on appeal. T 715/24 reason 2 suggests that claim interpretation is to be decided by the Board ex officio, with the result that claim interpretations first adopted during the appeal phase can be taken into account.

The EPO Boards of Appeal take a strict line on admissibility of new elements of the appeal case under Articles 12 and 13 RPBA. In many cases, the Boards do not admit claim interpretations adopted only on appeal (see e.g. T 402/21 r 1.2).

However, in T 715/24 reason 2 the Board actually admitted new interpretations submitted in the responses to patentee’s Grounds of Appeal on the basis that this is a question of law that the board must decide:

The board considers that claim interpretation is a question of law which must be answered by the board. Technically sensible claim interpretations cannot be discarded merely because they were not brought forward in opposition proceedings as this would prevent the board from properly interpreting the claim.

This complements T 1006/21, which established that also some procedural acts such as inadmissibility objections are to be decided ex officio so cannot be late filed. It looks potentially useful for parties struggling with admissibility of new claim interpretations only adopted on appeal. That Boards should be able to adopt technically sensible meanings, regardless of when these were raised in the proceedings, makes sense.

Image: Sagrada Familia, another late construction project, Canaan, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons