No new substance, no admissibility - T2077/11

The decision T2077/11  of the EPO's technical board of appeal is a warning for all those who appreciate the art of copy & paste in appeal proceedings.

The appellant had filed a voluminous writ with grounds of appeal against a decision in opposition proceedings. Further scrutiny revealed that most of what was said therein was a copy of the grounds of opposition. Some additional phrases like "contrary to the contested decision" were sprinkled throughout the text but no new substantive arguments were added and none of the reasons given by the opposition division why the arguments of the appellant/opponent was wrong was discussed.

Disregarding what was a copy of the arguments filed in the first instance, the board of appeal summarizes the grounds of appeal as follows:

In fact, the appellant's statement of grounds can be summarised as follows: "We disagree with the contested decision. Contrary to the opinion of the opposition division the subject-matter of claim 1 according to the first auxiliary request fails to meet the requirements of sufficiency of disclosure (Article 100(b) EPC) and does not involve an inventive step (Article 56 EPC) for the reasons given in our grounds of opposition (reproduced here)."

The appellant submitted that the reproduced arguments did substantiate the grounds of opposition and were to be considered correct despite of the finding to the contrary in the first instance. However, the board notes that substantiation of the appeal requires discussing the reasons given for the decision of the first instance, not the grounds of opposition:

The appellant is of course correct in stating that there is nothing in the EPC or in the case-law that prohibits a party from repeating arguments presented during the previous proceedings. This approach however ignores the fundamental function of appeal proceedings, whether ex parte or inter partes, which is the judicial review of a contested decision. To this end it is foreseen that all decisions subject to appeal must set out the reasons supporting the conclusion reached having duly considered all the facts and arguments of the parties (Article 111(2) EPC). By the same token, the party contesting the reasoned decision is expected to consider and rebut at least one of those reasons in its effort to prove that the impugned decision is wrong and should be set aside. (emphasis added)