Board of Appeal of the European Patent Office rejects appeal as being inadmissible

In a decision of September 9, 2016, (T 2170/10) the Board of Appeal found an appeal lodged by a patent applicant to be inadmissible. The Examining Division found a document (D1), to be novelty-destroying with regard to claim 1 of the application. In its grounds of appeal, the applicant basically repeated the arguments for why he believed that document D1 is not novelty-destroying for claim 1. The Board of Appeal found that to be insufficient: “in particular, if the appellant submits that the decision under appeal is incorrect, then the statement setting out the grounds of appeal must enable the Board to understand immediately why the decision is alleged to be incorrect and on what facts the appellant bases its arguments, without first having to make investigations of its own.” The Board continues by saying: “as the case law of the Boards of Appeal has made abundantly clear … the appeal procedure is not a mere continuation of the examination procedure. Where the applicant in the grounds of appeal repeats its arguments set out during the examination phase, without taking into account the decision under appeal, it mistakes the function of the Boards of Appeal. They are not a second go at the examination procedure, but are meant to review decisions made by the examining divisions, based on the objections raised against the decision in the grounds of appeal, which must therefore relate to the reasons on which the decision under appeal is based.” The decision is somewhat harsh, and clearly tells the appellant that he has to deal with the reasons of the contested decision in a detailed manner in the grounds of appeal. The fact that the appellant did not sufficiently do that in the view of the Board of Appeal led, in the present case, to the further harsh consequence that auxiliary requests which had been filed during the appeal proceedings were not taken into consideration because the appeal was not admissible from the beginning.