SONN Patentanwälte – IP Attorneys

EPO case law: Strict requirements regarding the obligation to substantiate in the appeal

In the case of cumulative lines of argument that build on each other, a complete presentation of the reasons, as Article 108 EPC and Article 12 RPBA have always demanded, requires the presentation of all facts, which only together support the alleged legal result (here: publicity of prior use and novelty destroying anticipation of all features of the invention by the same in an appeal against the classification of an invention as new within the meaning of Article 54 EPC). Only then is it shown that the decision should be set aside, see T 922/05, reasons no. 3 and 4, for the mirror-image case of an appeal against a decision listing several alternative reasons for the lack of patentability of an invention. If only one of several facts to be set out cumulatively in order to amend the decision is sufficiently substantiated, the appeal is inadmissible (EPO BoA 28 May 2020, T 2884/18, facts to be set out cumulatively).