EPO: T1267/10 (DeLaval v. Octrooibureau Van der Lely), Board of Appeal, 20 April 2015
September 16, 2015
An EPO board held that an appellant in a cross-appeal can be bound by an analogy of the bar against reformatio in peius, when filing a request later than with the grounds of appeal. When the appellant could have filed the request with the grounds of appeal, but filed the request only in response to the grounds of appeal of the cross-appellant, the appellant effectively only had the rights of a respondent and the bar against reformatio in peius applied analogously.
A full summary of this case has been published on Kluwer IP Law.
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DXThomas
A daring but wholly justified decision. It can be summarised as follows: replying to an appeal by the opponent, does not give the proprietor a new chance to file requests which he should have filed when filing his own appeal, if nothing has changed in substance. Should the opponent file new evidence, then the proprietor can legitimately file new requests. Whether it is wise to do so immediately in reply to the filing of the new evidence is to be seen as it means de facto admitting the new evidence in the proceedings, cf. T 68/02 , or T 780/05. it should at least be done with express reservations, cf. in analogy T 805/13.