T 2370/13 11-10-2018

Reasons for the Decision

1. Oral proceedings before the board

1.1 As announced in advance, the duly summoned appellant did not attend the oral proceedings. In accordance with Rule 71(2) EPC 1973 the proceedings were continued without the appellant.

1.2 According to Article 15(3) and (6) RPBA, the board shall "not be obliged to delay any step in the pro­ceedings, inclu­ding its decision, by reason only of the absence at the oral proceedings of any party duly summoned who may then be treated as relying only on its written case" and "ensure that each case is ready for decision at the conclusion of the oral proceedings, unless there are special reasons to the contrary."

Indeed, the purpose of oral proceedings is to give the party the opportunity to present its case and to be heard. However, a party gives up that opportunity if it does not attend the oral proceedings.

In the present case, the main request and the first and second auxiliary request were filed with the letter dated 11 September 2018, i. e. after the oral proceedings be­fore the board had been arranged. Under such circum­stances the appellant had to expect a discussion on the admission of these newly filed requests during the oral proceedings, in particular because explicit reference had been made to Article 13 RPBA in the board's commu­nica­tion pursuant to Article 15(1) RPBA annexed to the summons to oral proceedings. By not attending the oral proceedings the appellant gave up the opportunity to present its case as to why the requests should be admitted into the appeal proceedings and could thus be treated as relying only on its written submissions in this respect (see T 1587/07, points 2.1 and 2.2 of the Reasons).

The board's decision in relation to the admission of the newly filed requests (see point 2 below) is there­fore in conformity with the requirements of Article 113(1) EPC 1973 that the decisions of the EPO may only be based on grounds or evidence on which the parties concerned have had an opportunity to present their comments.

Consequently, the case was ready for decision at the conclusion of the oral proceedings.

2. Admission of the main request and the first and second auxiliary requests

2.1 The main request and the first and second auxiliary requests were filed one month before the date of the oral proceedings before the board. They constitute therefore an amendment to the appellant's case after it has filed its grounds of appeal and may be admitted into the proceedings and considered at the board's discretion (Article 13(1) RPBA).

2.2 In accordance with established case law, late-filed requests are inadmissible if - prima facie - they do not overcome the outstanding objections under the EPC or give rise to new objections (Case Law of the Boards of Appeal of the EPO, 8th edition 2016, sections IV.E.4.4.1 and 4.4.2).

2.3 In the present case the board had stated in the commu­nication under Article 15(1) RPBA its provisional opin­ion that claim 1 of the main request as then on file extended beyond the application as filed contrary to the provisions of Article 123(2) EPC and that the sub­ject-matter of that claim did not involve an inventive step (Article 56 EPC 1973).

2.4 Apart from minor amendments addressing the board's ob­jections under Article 123(2) EPC, claim 1 of the main request differs from claim 1 of the previous main re­quest essentially in that feature (ii) was added.

In its letter dated 11 September 2018 the appellant merely asserted that feature (ii) was clear, without any indication how it should be understood. However, the wording of additional feature (ii) appears to imply that light having different colors is generated simul­taneously, which is in apparent contradiction to the indications in dependent claim 2, according to which light having different colors (namely red, green and blue light) is sequentially generated. Moreover, the relation between the "predetermined time interval in one frame" defined in feature (ii) and the "plurality of periods" of one frame, defined previously in the claim, appears un­clear. Therefore - prima facie - the addition of­ feature (ii) in claim 1 of the main request gives rise to new objections under Article 84 EPC 1973.

Moreover, the appellant did not indicate how the sub­ject-matter of feature (ii) contributed to solving the stated technical problem of im­proving the uniformity of luminance across the LCD panel or what other object might be achieved by it. Given its apparently unclear formulation this is not evident to the board, either. If - on the other hand - feature (ii) were supposed to mean that the periods dividing the frames were the same for all light-emitting units, it would merely define a standard set­ting which the skilled person would select by default. Prima facie the board is thus of the opinion that the incorporation of feature (ii) in claim 1 of the main request does not contribute anything towards over­coming the objec­tion in relation to a lack of inventive step.

2.5 Claim 1 of the first auxiliary request and claim 1 of the second auxiliary request also comprise feature (ii) while claim 2 of these requests is identical to claim 2 of the main request. Hence, the reasoning mentioned under point 2.4 above also applies to the first and second auxiliary requests.

Moreover, the amendments effected in relation to claim 1 of the first and second auxiliary requests give rise to further objections under Article 84 EPC 1973, as it appears unclear what is meant by the "dimension" of a light-emitting unit (feature (i)') and how the "number" of light-emitting elements (feature (iv)) is to be determined. The technical effect of the subject-matter of these amendments is not evident to the board, either. Finally, the subject-matter of additional feature (iii) appears trivial. Hence - prima facie - the amendments effected in relation to claim 1 of the first and second auxiliary requests are not suitable for over­coming the objec­tion of lack of inventive step, either.

2.6 In view of the above, the main request and the first and second auxiliary requests are not admitted into the appeal proceedings (Article 13(1) RPBA).

3. Conclusion

The appellant stated in the letter dated 11 Septem­ber 2018 that the previously filed claim requests were withdrawn. As the board does not admit the main request and the first and second auxiliary requests into the appeal proceedings, there is no admissible request on file. Consequently, the appeal is to be dismissed (Article 111(1) EPC 1973).