Decisions citing G 4/95

T 0577/11 citing G 0004/95:
{
  [1,1] = 5.1 At the second oral proceedings, the appellant requested that its expert on legal matters, Mr Van Engelen, a Dutch professor of law, be allowed to make oral submissions. The respondent objected to this request as Mr Van Engelen was not a professional representative, and the appellant’s intention that he should speak had not been announced in advance of the oral proceedings. Hence the request was to be refused, cf. decision G 4/95 (OJ EPO 1996, 412).
  [1,2] = 5.2 The criteria set out in G 4/95 relate to the content and timing of the request of a party that its accompanying person be permitted to make oral submissions. These criteria governing the board’s discretion are, in particular, aimed at ensuring that no oral submissions are presented by or on behalf of a party which take the opposing party by surprise and for which that party is not prepared. Accordingly, especially where such requests are made shortly before or at the oral proceedings, they should be refused unless there are exceptional circumstances or the opposing party agrees (see G 4/95, supra, Headnote II and Reasons, point 10).
}

T 1706/06 citing G 0004/95:
{
  [1,1] = 1. The question of whether an accompanying person may make oral submissions on technical issues during oral proceedings has been considered by the Enlarged Board of Appeal in decision G 4/95 (OJ EPO 1996, 412). It held that such oral submissions could not be made as a matter of right but only at the discretion of the board. The Enlarged Board set out that a professional representative when requesting permission should inter alia make the request sufficiently in advance that all opposing parties are able properly to prepare themselves in relation to the proposed oral submissions. In particular, it stated that a request made shortly before the oral proceedings should, in the absence of exceptional circumstances, be refused unless each opposing party has agreed to the making of the oral submissions requested. In the present case the patent proprietor did not agree.
  [1,2] = 1.1 At the time that the opponent formulated its request for Mr Creak to be heard the claims on file were those introduced with a letter notified to the opponent in August 2007. It follows that the opponent, which had already filed an auxiliary request for oral proceedings in its statement of grounds of appeal, waited some months before deciding to request that Mr Creak be heard and then filed that request only one month before the oral proceedings. Under these circumstances the filing of the request for Mr Creak to be heard must be considered as having been made ‘shortly’ before the oral proceedings. No exceptional circumstances existed which would have justified the board departing from the guidance given in decision G 4/95 (supra) and, moreover, on the basis of the information given by the opponent it appeared that any statements made by Mr Creak would not have advanced the case.
}

T 0596/02 citing G 0004/95:
{
  [1,1] = The introduction of a new ground of opposition under Article 83 shortly before the oral proceedings represents an abuse of procedure, it is additionally not substantiated and should thus not be allowed. In accordance with G 10/91 and G 9/91 this ground should not be introduced. Similarly, the introduction of the late filed document D13 represents an abuse of the procedure and a tactical manoeuvre to bring the patentee into an awkward position very shortly before the oral proceedings. The respondent has neither provided any explanation for the late filing nor is it the result of any late development in this case. Consequently, D13 should also not be allowed. The naming of Dr Åkesson a an expert is also too late and not in line with the principle set forth in G 4/95.
  [1,2] = The new ground of opposition under Article 83 EPC arose from a discussion between the representative and the respondent when preparing for the oral proceedings. New document D13 was submitted as a reaction to the proposed auxiliary requests which comprise a feature from the description. D13 discloses that MT TiCN layers have less residual stress than HT-TiN (cf. page 838, „Residual Stress“) and that MT-Ti(C,N) coatings with HT- CVD coatings like TiN or Al2O3 opens new possibilities for the development of coated cemented carbides with a broad application field (cf. page 840, left column, first paragraph). According to Figure 8 of D13 an example having the layer order of MT Ti(C,N), Al2O3 and TiN is shown (cf. Figure 8). Therefore the skilled person would combine the teachings of documents D2 and D13 and thereby derive the subject-matter of claim 1. The presence of Dr Åkesson as an expert was correctly notified in full agreement with the decision G 4/95.
  [1,3] = 4. The appellant requested that Dr Åkesson not be allowed to make contributions during the oral proceedings because his nomination as an expert was too late and not in agreement with decision G 4/95.
  [1,4] = The Board rejected this request as the presence of Dr Åkesson as an expert had been notified on the last day for making further submissions as set out in the Board’s communication. His qualifications were mentioned as well as the intended topics of measurement of tensile residual stress and of the migration of carbon and nitrogen between adjacent layers of TiN and TiC. Furthermore, the presence of Mr Åkesson was counter-balanced by the presence of an inventor on the side of the appellant. Mr Åkesson was therefore allowed to make technical submissions in full agreement with decision G 4/95 (cf. OJ 1996, 412).
}

T 0085/93 citing G 0004/95:
{
  [1,1] = <td colspan="2">Ein Beleg für das allgemeine Fachwissen sollte wie alle anderen zur Erhärtung des Vorbringens eines Einsprechenden dienenden Beweismittel in einer frühen Phase des Verfahrens vor der Einspruchsabteilung eingereicht werden (im Anschluß an die Entscheidung G 4/95, ABl. EPA 1996, 412) und kann von der Kammer nach deren Ermessen als unzulässig zurückgewiesen werden, wenn er erstmals im Beschwerdeverfahren eingereicht wird.</td>
  [1,2] = In der Entscheidung G 4/95 (ABl. EPA 1996, 412, Nr. 4) wird ferner folgendes festgestellt: „Nach der in der Mitteilung ‘Einspruchsverfahren im EPA’ (ABl. EPA 1989, 417) erläuterten Praxis der Einspruchsabteilungen sollten Tatsachen und Beweismittel in einer frühen Phase des Verfahrens vor der Einspruchsabteilung vorgebracht werden - siehe insbesondere die Nummern 8 bis 13. Ein Einsprechender sollte Beweismaterial zur Begründung seines Einspruchs in der Regel innerhalb der neunmonatigen Einspruchsfrist oder innerhalb einer kurzen Nachfrist (zwei Monate) einreichen; der Patentinhaber muß seine Gegenbeweise innerhalb eines bestimmten Zeitraums danach vorlegen.
}

T 0151/95 citing G 0004/95:
{
  [1,1] = 1.1. Document (14) was filed by the respondents during oral proceedings before the opposition division and thus well outside the nine month opposition period provided in Article 99(1) EPC. The appellants, essentially relying on the decisions G 9/91 (OJ EPO 1993, 408), G 10/91 (OJ EPO 1993, 420), G 4/95 (OJ EPO 1996, 412), T 85/93 (OJ EPO 1998, 183), T 1002/92 (OJ EPO 1995, 605) T 258/84 (OJ EPO, 1987, 119) and T 273/84 (OJ EPO 1986, 346), argued that this document had been submitted late pursuant to Article 114(2) EPC. They requested that the case be remitted to the department of the first instance, if the board considered admitting document (14) into the proceedings in view of its possible relevance to the decision in the present case.
  [1,2] = Apart from the fact that the decisions relied on by the appellants relate in the first place to the admissibility of evidence filed for the first time in the opposition appeal proceedings and are thus of limited relevance to the present case, the above submission of the appellants, which would de facto leave no discretion to the boards of appeal to admit a late filed document into the proceedings, is contrary to the provisions of Article 114(2) EPC, and the legal principle and consistent practice at the EPO in this respect as established, inter alia, in Decision G 4/95 (OJ EPO 1996, 412), see Reasons, especially point 4:
}

T 0840/98 citing G 0004/95:
{
  [1,1] = 2.1. La présence non annoncée d’un expert technique accompagnant le mandataire agréé de la requérante a conduit la Chambre à évoquer au début de l’audience les principes exposés dans la décision G 4/95 (JO OEB 1996, 412).
}

T 0966/99 citing G 0004/95:
{
  [1,1] = The appellant is reminded that the appeal procedure is primarily a written procedure, and that oral proceedings are in principle appointed at a point in time when the Board considers the written submissions of all parties, including the written presentation of facts and evidence by all parties, to be complete (see „Guidance for parties to appeal proceedings and their representatives“, point 3.2, OJ EPO 1996, 342; G 4/95, OJ EPO 1996, 412, point 4c). Thus, in principle there is a record in the written submissions of the appellant of the facts and arguments that led the Board to give the opinion that the main request was not allowable. Only new facts or a totally different line of argumentation submitted at the oral proceedings, when taken into account for the decision, need therefore be seen as „relevant“ or „essential“ .
}

T 1392/04 citing G 0004/95:
{
  [1,1] = 5. As stated in decision G 4/95 of the Enlarged Board of Appeal (OJ EPO 1996, 412) (see Reasons, point 4) „While the filing of facts and evidence by parties to opposition and opposition appeal proceedings is not precluded at any stage of such proceedings, the admissibility of facts and evidence filed at a late stage in such proceedings is always a matter of discretion for the EPO (see Article 114(2) EPC)“. An important criterion in favour of admission is if such new material is prima facie highly relevant.
}

T 0392/06 citing G 0004/95:
{
  [1,1] = Article 13(1) RPBA leaves it to the discretion of the Board of Appeal to admit and consider any amendment to a party’s case after it has filed its grounds of appeal or reply. In view of the very late stage at which the ground under Article 100(b) EPC has been raised, thus taking the Board and the Appellant by surprise, the Board decided to exercise its discretion under Article 13(1) RPBA not to admit this ground of opposition into the procedure (see also G 4/95, OJ EPO 1996, 412, point 10, 1st paragraph).
}

T 0910/06 citing G 0004/95:
{
  [1,1] = were incorrect. D69 showed, by reporting the bond strengths (dissociation energies) that bonds could be broken in either of the two modes. Similarly the position that C-X bonds were not homolytically cleavable was not supported by the facts. The formulae specified in operative claims 1 and 2 were originally present in claim 10 as filed, which was dependent on originally filed claims 1 and 2 and so contained the feature that the bonds were homolytically cleavable. It was emphasised that all bonds had the capability of being homolytically cleaved. This was a matter of fact - there were circumstances under which the bonds could be homolytically cleaved, e.g. in the circumstances where the catalyst composition was used. This property did not apply to extremes but to the general case of use of the catalyst. Similarly simply because - theoretically - unrealistic, extreme conditions might be found in which for one of the compounds homolytic cleavage did not occur would not invalidate the claim. It was submitted that the correct construction of the claim was not to consider the initiators in isolation of the other features of the claim but rather to take account of the other components of the catalyst system present, i.e. that in the case of the use of the catalyst as claimed the bond would be homolytically cleavable. It was submitted that this issue, which had been raised only 2 weeks before the oral proceedings by the respondent, could be settled either by reference to D69 or by allowing the Inventor, Professor Haddleton to address the Board. The request to hear Professor Haddleton was resisted by the respondent due to the late announcement and the fact that the respondent did not have a technical expert present. While the request in the respondent’s letter of 18 November 2008 that Professor Haddleton not be allowed to speak had up to this point been respected by the Board, which had accordingly refrained from inviting Professor Haddleton to speak, the appellant emphasised that the objection pursuant to Art. 123(3) EPC had been raised only 2 weeks before the oral proceedings by the respondent and it was with respect to this point that it was now requested that Professor Haddleton be permitted to speak. It was further considered that under these circumstances it was inappropriate to refer to the findings of G 4/95 (OJ EPO 1996, 412) regarding submissions by accompanying persons. Following an interruption for deliberation the Board informed the parties that it was prepared to hear the technical expert and Inventor, Professor Haddleton solely on the question of the absence of the feature „homolytically cleavable“ with respect to Art. 123(3) EPC. The Inventor submitted that the definition in D69 of homolytic cleavage was correct. He submitted that although none of the initiator compounds b) would undergo homolytic cleavage spontaneously, under the conditions set out in the claims of the main request, i.e. the combination of:
  [1,2] = 5.9.4 According to the decision G 4/95, it is required that the request for permission for oral submissions to be made should state the name and qualifications of the accompanying person and should specify the subject-matter of the proposed oral submissions (G 4/95 Order 3.(b).(i)). It is also required that the request should be made sufficiently in advance of the oral proceedings so that all opposing parties are able properly to prepare themselves in relation to the proposed oral submissions.
  [1,3] = 5.9.6 Whilst it is true that G 4/95 calls for an advance indication of the subject-matter of the proposed oral submissions, in the present case a different situation arose in that the subject matter of the oral submissions in respect of which the appellant requested permission for the Inventor to speak was itself dictated by the objection of the respondent which had been raised only after the final date set by the Board. Under these circumstances, which do not fully reflect those underlying G 4/95, the Board saw no equitable reason to exercise its discretion against the appellant in respect of oral submissions from the Inventor on this one specific point.
  [1,4] = 5.9.8 Accordingly the Board concluded that, under the particular circumstances of this case, the conditions laid down in relation to oral submissions in accordance with G 4/95 were no bar to the Inventor’s submission on the term „homolytically cleavable bond with a halogen atom“ and consequently allowed the Inventor to speak.
}
max. number of citing decisions (10) reached ...