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T 0967/23; 2026-4-20; Overvoltage protection/OTIS

ORIGINAL-KEYWORDS:
Amendment to appeal case – (not admitted – new inventive step attack should have been filed during opposition proceedings); Novelty – (main request – yes); Inventive step – (main request – yes)

ORIGINAL-HEADNOTE:
The question of whether a fresh ground of opposition has been raised – and, therefore, of whether the agreement of the patentee is required – has to be distinguished from the question of whether there has been an amendment to a party’s appeal case. The admissibility of amendments represents a separate, independent issue and is subject to the discretion of the board under Article 114(2) EPC and Articles 12 and 13 RPBA.

AI AND HUMAN FEEDBACK:
– The headnote separates two procedural questions that are sometimes conflated in opposition appeal proceedings. Even if a line of attack is not treated as a fresh ground of opposition requiring the proprietor’s consent, it may still be an amendment to a party’s appeal case.
– The practical effect is that a new inventive-step attack can still be refused admission under Article 114(2) EPC and Articles 12 and 13 RPBA, especially where it should have been presented during the opposition proceedings.
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R 0003/24; 2026-3-31; Petition for review

ORIGINAL-KEYWORDS:
Breach of secrecy of deliberation (Article 19(1) RPBA) a fundamental defect under Article 112a(2)(d) EPC or per se leading to violation of right to be heard (no); Petition allowable (no) no violation of petitioner’s right to be heard

ORIGINAL-HEADNOTE:
1. A request to uphold an appeal on the basis of a specific piece of prior art is not a request in the meaning of Rule 104(b) EPC (point 3.1 of the Reasons).
2. Article 112a(2)(d) EPC is not a “catch-all clause” for procedural defects. It merely empowers the legislature to define defects in the Implementing Regulations in addition to the defects mentioned in Article 112a EPC. Rule 104 EPC exhaustively defines exactly two defects; a violation of any of the provisions of the RPBA is not among them. (R 12/23, point 3.1 affirmed.) (See point 3.2 of the Reasons). This applies in particular to an asserted violation of Article 19(1), third sentence, RPBA according to which “[t]he deliberations shall be secret.” A remedy for the breach of the secrecy of the deliberation does exist: board members may be liable to disciplinary action by the Administrative Council. (See points 4.1.2 and 4.3.1 of the Reasons).

AI AND HUMAN FEEDBACK:
– The Enlarged Board confirms that petitions for review are limited to the grounds listed in Article 112a EPC and the two additional defects exhaustively defined in Rule 104 EPC. Article 112a(2)(d) EPC is not a general safety net for all serious procedural complaints.
– A party’s wish that the appeal be upheld on a particular prior-art basis is not a “request” for the purposes of Rule 104(b) EPC. Likewise, an alleged breach of the secrecy of deliberations under the RPBA does not by itself create a reviewable defect or automatically amount to a violation of the right to be heard.
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T 0424/23; 2026-3-12

ORIGINAL-KEYWORDS:
Grounds for opposition – lack of novelty (no) – insufficiency of disclosure (no) – lack of inventive step (no); Patent maintained as granted; Remittal to the department of first instance – (no)

ORIGINAL-HEADNOTE:
In the context of the problem-solution-approach, the document to be combined with the closest prior art does not need to state explicitly that it solves the objective technical problem for it to be considered by the skilled person. It suffices that the skilled person is able to recognise that it does so, once the combination document has been found by the skilled person. However, the skilled person still needs a reason to take such a document into consideration (see points 16 to 18 of the Reasons).

AI AND HUMAN FEEDBACK:
– The Board clarifies the role of the “combination document” in inventive-step analysis. The document does not have to advertise, in its own words, that it solves the objective technical problem formulated by the Board.
– That does not remove the need for a motivation to combine. The skilled person must still have a reason to consider that document in the first place; only then is it enough that the skilled person can recognise its relevance to the objective technical problem.
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#HOT

T 0101/22; 2026-2-27; Barillet/ROLEX

ORIGINAL-KEYWORDS:
Activité inventive – (non) – alternative évidente; Droit d’être entendu – procédure d’examen – possibilité de prendre position (oui); Objection au titre de la règle 106 CBE – rejetée; Remboursement de la taxe de recours – équitable en raison d’un vice substantiel de procédure (non)

AI-TRANSLATED-KEYWORDS:
Inventive step – (no) – obvious alternative; Right to be heard – examination proceedings – opportunity to comment (yes); Objection under Rule 106 EPC – rejected; Reimbursement of the appeal fee – equitable by reason of a substantial procedural violation (no)

ORIGINAL-HEADNOTE:
Un effet technique ne peut être pris en compte dans l’appréciation de l’activité inventive que s’il est obtenu sur essentiellement toute la portée revendiquée. Cette condition n’est pas remplie lorsque l’effet n’est obtenu qu’en comparant l’objet revendiqué à un élément de l’état de la technique sur la base de l’hypothèse supplémentaire selon laquelle d’autres caractéristiques ou paramètres non définis dans la revendication sont identiques (sophisme du „toutes choses inchangées par ailleurs“), voir motifs 2.4.2. Il ne saurait raisonnablement être exigé de produire une preuve à l’appui d’une analyse selon laquelle certaines modifications de l’état de la technique auraient été évidentes. Une telle analyse ne constitue pas un fait susceptible de preuve, mais un argument. Une partie qui conteste les connaissances générales ne peut exiger une preuve que pour les faits qui sont présentés comme faisant partie de ces connaissances générales, voir motifs 12.9.

AI-TRANSLATED-HEADNOTE:
A technical effect can be taken into account in assessing inventive step only if it is achieved over essentially the whole claimed scope. This condition is not met where the effect is obtained only by comparing the claimed subject-matter with an item of the prior art on the basis of the additional assumption that other features or parameters not defined in the claim are identical, i.e. the “all other things being equal” fallacy; see Reasons 2.4.2. It cannot reasonably be required to produce evidence in support of an analysis that certain modifications of the prior art would have been obvious. Such an analysis is not a fact capable of proof, but an argument. A party contesting common general knowledge can require evidence only for the facts presented as forming part of that common general knowledge; see Reasons 12.9.

AI AND HUMAN FEEDBACK:
– The Board rejects an inventive-step argument that depends on a technical effect not achieved across essentially the whole claim. A comparison is not enough if it assumes that unclaimed parameters remain unchanged.
– The decision also distinguishes evidence from argument. A party may demand proof of alleged facts forming part of common general knowledge, but not proof of the legal-technical reasoning that a particular modification would have been obvious.
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#hot  T 0561/23; 2026-2-26; Jalousiensystem/CONTROLTRONIC

ORIGINAL-KEYWORDS:
Neuheit – Hauptantrag, Hilfsantrag I (nein) – Hilfsantrag XIb‘ (ja); Änderung nach Zustellung der Mitteilung nach Artikel 15(1) VOBK – Hilfsanträge XIb‘, XIb“, XIc‘ – außergewöhnliche Umstände (ja); Änderung veranlasst durch Einspruchsgrund – Hilfsantrag XIb‘ (ja); Ersetzung eines erteilten unabhängigen Anspruchs durch mehrere unabhängige Ansprüche durch Aufnahme erteilter abhängiger Ansprüche – vereinbar mit Regel 80 EPÜ (ja) – T 1138/02 nicht gefolgt; Zurückverweisung – (ja)

AI-TRANSLATED-KEYWORDS:
Novelty – main request, auxiliary request I (no) – auxiliary request XIb‘ (yes); Amendment after notification under Article 15(1) RPBA – auxiliary requests XIb‘, XIb“, XIc‘ – exceptional circumstances (yes); Amendment occasioned by a ground for opposition – auxiliary request XIb‘ (yes); Replacement of a granted independent claim by several independent claims by incorporating granted dependent claims – compatible with Rule 80 EPC (yes) – T 1138/02 not followed; Remittal – (yes)

ORIGINAL-HEADNOTE:
Zur Frage der Ersetzung eines unabhängigen Anspruchs durch mehrere unabhängige Ansprüche durch Einbeziehung abhängiger Ansprüche unter Regel 80 EPÜ, siehe Punkte 21 bis 26 der Entscheidungsgründe.

AI-TRANSLATED-HEADNOTE:
On the question of replacing an independent claim by several independent claims through the incorporation of dependent claims under Rule 80 EPC, see Reasons 21 to 26.

AI AND HUMAN FEEDBACK:
– The headnote points to the Board’s analysis of whether Rule 80 EPC permits a granted independent claim to be replaced by several independent claims formed by incorporating granted dependent claims.
– The Board treated such a restructuring as potentially allowable where it is occasioned by a ground for opposition, and it expressly did not follow T 1138/02 on this point.
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#hot T 2488/22; 2026-2-18

ORIGINAL-KEYWORDS:
Grounds for opposition – added subject-matter (yes)

ORIGINAL-HEADNOTE:
1. The description and drawings should be consulted to interpret the claims not only when assessing patentability under Articles 52 to 57 EPC but also when assessing compliance with other requirements of the EPC. Claims must be interpreted in a consistent and uniform manner when assessing compliance with the EPC (Reasons 16). 2. Limiting the claims based on the description and drawings when such limitations are not derivable from the claims‘ wording would deprive Articles 123(2) EPC and 100(c) EPC from their meaning and purpose (Reasons 20 and 21).

AI AND HUMAN FEEDBACK:
– The decision applies the G 1/24 approach beyond patentability. Claims are to be interpreted consistently when assessing different EPC requirements, including added subject-matter.
– At the same time, the description cannot be used to read unclaimed limiting features into the claims where those limitations are not derivable from the claim wording. Otherwise the added-matter safeguards of Articles 123(2) and 100(c) EPC would lose their function.
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T 0558/21; 2025-12-15; Calcul cryptographique sur courbe elliptique/IDEMIA

ORIGINAL-KEYWORDS:
Procédure orale – requête de tenue de la procédure orale par visioconférence (refusée); Vice substantiel de procédure – violation du droit d’être entendu (non); Modifications – admises (oui); Interprétation de la revendication 1 – sous-étape mentionnée dans la revendication n’est pas limitative; Exclusion de la brevetabilité – (non); Activité inventive – effet technique (oui) – non-évidence au regard de l’état de la technique documenté pas contestée en recours

AI-TRANSLATED-KEYWORDS:
Oral proceedings – request to hold oral proceedings by videoconference (refused); Substantial procedural violation – violation of the right to be heard (no); Amendments – admitted (yes); Interpretation of claim 1 – sub-step mentioned in the claim is not limiting; Exclusion from patentability – (no); Inventive step – technical effect (yes) – non-obviousness over the documented prior art not contested on appeal

ORIGINAL-HEADNOTE:
1. Sur la pertinence de l’appartenance d’une invention à un « domaine technique » pour son caractère technique et pour l’identification des caractéristiques qui y contribuent, cf. points 29 et 42. 2. Sur la contribution technique d’une méthode mathématique de génération d’un point sur une courbe elliptique utilisé dans une application cryptographique, cf. point 40. 3. Sur la détermination des caractéristiques d’une invention qui contribuent à son caractère technique dans le cadre de l’approche COMVIK, cf. point 41.

AI-TRANSLATED-HEADNOTE:
1. On the relevance of an invention’s belonging to a “technical field” for its technical character and for identifying the features that contribute to that technical character, see points 29 and 42. 2. On the technical contribution of a mathematical method for generating a point on an elliptic curve used in a cryptographic application, see point 40. 3. On determining the features of an invention that contribute to its technical character under the COMVIK approach, see point 41.

AI AND HUMAN FEEDBACK:
– The headnote directs attention to how the Board assessed technical character for a computer-implemented cryptographic invention. It distinguishes the general fact that a field is technical from the more specific question of which claim features make a technical contribution.
– The important practical issue is the COMVIK analysis: mathematical steps are not automatically excluded from contributing to inventive step, but their contribution depends on how they interact with a technical application, here the generation of an elliptic-curve point for cryptography.
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T 0439/22; 2025-12-11

ORIGINAL-KEYWORDS:
Grounds for opposition – lack of patentability (yes); Interpretation of the claims in light of the description (yes); Novelty – main request (no); Amendment after summons – exceptional circumstances (yes) – cogent reasons (yes); Amendments – patent amended in such a way as to extend the protection it confers (yes)

ORIGINAL-HEADNOTE:
1. In interpreting the language used in a claim, „consulting“, „referring to“, „using“ and „taking into account“ the description and figures are synonyms for the act of deriving the necessary information from the patent as a whole to understand which meaning a person skilled in the art would attribute to the terms used in the claim. (see Reasons 2.3) 2. Claim interpretation is the result of both reading the claims and consulting the description and drawings as a unitary process (holistic approach taken by the Enlarged Board of Appeal in decision G 1/24). (see Reasons 2.4) 3. In line with this approach, a person skilled in the art reading the claim in the context of the description and figures will try to take a definition found in the description at face value. As long as the definition is technically reasonable and complies with the overall teaching of the claims, description and figures, the skilled person will read terms in the claim in the sense of the definition, taking into account both the broadening and limiting aspects. (see Reasons 3.4 and 6)

AI AND HUMAN FEEDBACK:
– This decision applies G 1/24 and emphasizes a holistic claim-interpretation exercise. The claims, description and drawings are read together to determine how the skilled person would understand claim language.
– A definition in the description is not ignored merely because the claim wording looks clear in isolation. If the definition is technically reasonable and consistent with the patent as a whole, it can shape the meaning of the claim term, including both broader and narrower aspects.
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R 0016/23; 2025-11-21; Petition for review

ORIGINAL-KEYWORDS:
Petition for review – failure to arrange oral proceedings – decision under review set aside – re-opening of proceedings

ORIGINAL-HEADNOTE:
1. As oral proceedings had been requested by the appellant-applicant in the event that an adverse decision on the request for re-establishment of rights and on the appeal were taken, the Board should have arranged for the holding of oral proceedings pursuant to Article 116(1) EPC before taking any such adverse decision. 2. The failure to arrange oral proceedings constitutes a fundamental procedural defect within the meaning of Article 112a(2)(d) and Rule 104(a) EPC since, as a result, the appellant-applicant did not have the opportunity to present the case orally on the decisive issues of re-establishment of rights and the admissibility of the appeal. 3. As a consequence, the decision is to be set aside, proceedings before the Board are to be re-opened and the fee for the petition for review is to be reimbursed.

AI AND HUMAN FEEDBACK:
– The Enlarged Board treats a properly conditional request for oral proceedings seriously. If the Board intends to issue an adverse decision on the issues covered by that request, it must first hold oral proceedings.
– Failure to do so deprived the applicant of the opportunity to argue orally on decisive issues. The consequence was exceptional: the reviewed decision was set aside, the appeal proceedings were reopened and the petition fee was reimbursed.
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T 0759/23; 2025-11-4; Tropical lagoon I/CRYSTAL LAGOONS

ORIGINAL-KEYWORDS:
Article 109(2) EPC – requirement for remittal without comments (no – an internal note added to the electronic file); Remittal to the department of first instance (yes); Procedural irregularity that raises serious concerns (yes – replacement of the whole examining division for no apparent reasons at the stage of interlocutory revision)

ORIGINAL-HEADNOTE:
[W]hile reviewing the documents in the electronic file, the Board became aware of an internal note not visible to the public, acting as some sort of votum discussing the appeal. It was added six weeks after the grounds of appeal (see point V of the facts). This was in the three-month period in which the examining division had to consider whether to grant interlocutory revision. The note analysed the allowability of the refused request and drew negative conclusions on the persuasiveness of the appellant’s arguments. It also addressed aspects and evidence not mentioned in the decision or the grounds of appeal. For example, the note analysed previous claim versions and documents which the examining division did not use in their reasoning. Subsequently, the case was remitted to the Board. (See point 5 of the reasons) It is clear that this internal note containing comments and conclusions on the substance of the case violates the requirement to remit the case „without comment“. In particular, by providing comments on the merits after issuing the decision, the examining division went beyond the role assigned to it under Article 109(2) EPC and thereby undermined the devolutive effect of the appeal. The Board judges that this procedural flaw constitutes a substantial procedural violation justifying a remittal to the examining division for further prosecution (Article 111(1) EPC and Article 11 RPBA). (See point 6 of the reasons) Moreover, this case has another connected peculiarity in that, four days after filing the grounds of appeal and by the time the internal note was drafted, the entire examining division had been replaced. It thus appears that the internal note, which is unsigned, was drafted by one of the new members of the examining division to assist the other two members in deciding whether to rectify the decision. Thus, this note as well as the whole procedure under Article 109 EPC did not even serve the purpose of an interlocutory revision which is to allow for a rectification of the contested decision by the examining division that has taken this decision, but rather represented a complete re-examination of the file. (See point 9 of the reasons) [T]he arbitrary replacement of the examining division is not supported by a reasonable interpretation of the Guidelines for Examination. The Board considers that this interpretation should not be expanded to include arbitrary „necessary steps“. Just because the President of the Office or any delegee has the power to do something does not mean that they should do it. It may legitimately be expected of an Office that decides on the grant of significant rights to applicants that procedural steps are not exercised arbitrarily. Rather, such steps should be subject to reasonable safeguards in order to avoid the perception that they are exercised for reasons unrelated to the purpose of the procedure – here, to check whether it is immediately apparent from the reasons given in the grounds of appeal that the decision cannot stand. (See point 15 of the reasons)

AI AND HUMAN FEEDBACK:
– The Board criticizes the use of an internal, non-public note containing substantive comments during interlocutory revision. Article 109(2) EPC requires remittal to the Board “without comment” when interlocutory revision is not granted.
– The decision also raises rule-of-law concerns about replacing the whole examining division without apparent justification at that stage. The Board viewed the process as a re-examination by a newly composed division rather than a proper check by the division that issued the refusal.
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T 0758/23; 2025-11-4; Tropical lagoon II/CRYSTAL LAGOONS

ORIGINAL-KEYWORDS:
Article 109(2) EPC – requirement for remittal without comments (no – an internal note added to the electronic file of a related case); Remittal to the department of first instance (yes); Procedural irregularity that raises serious concerns (yes – replacement of the whole examining division for no apparent reasons at the stage of interlocutory revision)

ORIGINAL-HEADNOTE:
[W]hile reviewing the documents in the electronic file in related case T 759/23, the Board became aware of an internal note not visible to the public, acting as some sort of votum discussing the appeal. It was added six weeks after the grounds of appeal (see point V of the facts). This was in the three-month period in which the examining division had to consider whether to grant interlocutory revision in that case. The note analysed the allowability of the refused request and drew negative conclusions on the persuasiveness of the appellant’s arguments. It also addressed aspects and evidence not mentioned in the decision or the grounds of appeal. For example, the note analysed documents which the examining division did not use in their reasoning. Subsequently, the case was remitted to the Board. The Board notes that the composition of the examining divisions at the stage of interlocutory revision was identical in both cases, that the claimed subject-matter is closely related, and that both decisions raised a similar objection under Article 56 EPC. On that basis, the Board judges that there is a sufficiently close connection between the two cases to conclude that the internal note in case T 759/23 was intended to serve as a sort of votum for the assessment of inventive step in the present case as well. (See point 5 of the reasons) It is clear that this internal note containing comments and conclusions on the substance of the case violates the requirement to remit the case „without comment“. In particular, by providing comments on the merits after issuing the decision, the examining division went beyond the role assigned to it under Article 109(2) EPC and thereby undermined the devolutive effect of the appeal. The Board judges that this procedural flaw constitutes a substantial procedural violation justifying a remittal to the examining division for further prosecution (Article 111(1) EPC and Article 11 RPBA). (See point 6 of the reasons) Moreover, this case has another connected peculiarity in that, four days after filing the grounds of appeal and by the time the internal note was drafted, the entire examining division had been replaced. An identical replacement took place at the same time in case T 759/23, with the compositions of the examining division, both before and after the replacement, being the same. It thus appears that the internal note, which is unsigned, was drafted by one of the new members of the examining division to assist the other two members in deciding whether to rectify the decisions in case T 759/23 and in this case. Thus, this note as well as the whole procedure under Article 109 EPC did not even serve the purpose of an interlocutory revision which is to allow for a rectification of the contested decision by the examining division that has taken this decision, but rather represented a complete re-examination of the file. (See point 9 of the reasons) [T]he arbitrary replacement of the examining division is not supported by a reasonable interpretation of the Guidelines for Examination. The Board considers that this interpretation should not be expanded to include arbitrary „necessary steps“. Just because the President of the Office or any delegee has the power to do something does not mean that they should do it. It may legitimately be expected of an Office that decides on the grant of significant rights to applicants that procedural steps are not exercised arbitrarily. Rather, such steps should be subject to reasonable safeguards in order to avoid the perception that they are exercised for reasons unrelated to the purpose of the procedure – here, to check whether it is immediately apparent from the reasons given in the grounds of appeal that the decision cannot stand. (See point 15 of the reasons)

AI AND HUMAN FEEDBACK:
– This companion decision applies the same procedural concerns to a closely related appeal. Even though the internal note was in T 759/23, the Board found a close enough connection for the note to affect the assessment of this case as well.
– The decision reinforces that interlocutory revision is not an opportunity for a newly constituted examining division to create a substantive votum for the appeal file. Substantive internal comments after refusal can undermine the devolutive effect of the appeal and justify remittal.
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T 0077/23; 2025-10-21

ORIGINAL-KEYWORDS:
Neuheit – (nein); Einspruchsgründe – mangelnde Patentierbarkeit (ja); Prüfung des Einspruchs – Umfang der Befugnis zur Prüfung der Einspruchsgründe

AI-TRANSLATED-KEYWORDS:
Novelty – (no); Grounds for opposition – lack of patentability (yes); Examination of the opposition – scope of the power to examine the grounds for opposition

ORIGINAL-HEADNOTE:
Eine erstmalige Diskussion in der mündlichen Verhandlung der Neuheit oder erfinderischen Tätigkeit des beanspruchten Gegenstands gegenüber von im Verfahren diskutierten Druckschriften, welche nur zu höherrangigen Anträgen diskutiert worden waren, kann die der mündlichen Verhandlung fernbleibende Partei nicht überraschen und stellt keine Verletzung ihres rechtlichen Gehörs dar (Punkt 10.4 der Gründe).

AI-TRANSLATED-HEADNOTE:
An initial discussion at the oral proceedings of novelty or inventive step of the claimed subject-matter over prior-art documents discussed in the proceedings, which had only been discussed for higher-ranking requests, cannot surprise the party absent from the oral proceedings and does not constitute a violation of its right to be heard (Reasons 10.4).

AI AND HUMAN FEEDBACK:
– The Board confirms that a party choosing not to attend oral proceedings cannot necessarily complain of surprise when documents already discussed in the case are applied to lower-ranking requests.
– The right to be heard was not violated because the relevant prior art and issues were already in the proceedings; the absent party had to expect that novelty or inventive step could be addressed in relation to the pending requests.
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T 1283/22; 2025-10-16; Circuit Breaker

ORIGINAL-KEYWORDS:
Novelty – main request and auxiliary requests I-VI (no) – auxiliary request VIII (yes); Claims – clarity – auxiliary request VII (no)

ORIGINAL-HEADNOTE:
While the amending of Rule 117 EPC may have been occasioned by a particular situation (in this case the pandemic), the wording of Rule 117 EPC does not limit its application to a pandemic or similar exceptional situation. It thus applies irrespective of whether the situation which occasioned its amendment persists or not (Reasons 2.3.2 (a)). The board is not aware of any statement by the Enlarged Board in G 1/21 that would be even indirectly – let alone directly – applicable to hearing a witness. (Reasons 2.3.2 (e)).

AI AND HUMAN FEEDBACK:
– The Board interprets Rule 117 EPC according to its wording rather than the historical reason for its amendment. Even if the amendment was prompted by pandemic conditions, the rule is not confined to pandemic or emergency situations.
– The decision also distinguishes witness evidence from the situation addressed in G 1/21. The Board did not see G 1/21 as controlling the question of hearing a witness under Rule 117 EPC.
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R 0010/24; 2025-10-6; Antrag auf Überprüfung

ORIGINAL-KEYWORDS:
Verletzung des rechtlichen Gehörs (nein)

AI-TRANSLATED-KEYWORDS:
Violation of the right to be heard (no)

ORIGINAL-HEADNOTE:
Wegen der Intensität des Eingriffs einer Nichtzulassung geänderten Vorbringens durch Vorschriften der VOBK, d.h. deren Artikel 12 und 13, sind Auslegung und Anwendung dieser das rechtliche Gehör qualifizierenden Vorschriften einer inhaltlichen Kontrolle nicht lediglich auf Willkür zu unterziehen. Insoweit ist das Recht auf rechtliches Gehör etwa auch bei einer offenkundig unrichtigen Anwendung solcher Vorschriften verletzt. (Siehe Entscheidungsgründe, Nr. B.II.3.2.)

AI-TRANSLATED-HEADNOTE:
Because of the intensity of the interference caused by the non-admission of amended submissions under the provisions of the RPBA, namely Articles 12 and 13, the interpretation and application of those provisions, which qualify the right to be heard, are not subject to substantive review merely for arbitrariness. In this respect, the right to be heard is also violated where such provisions are applied in a manifestly incorrect manner. (See Reasons, B.II.3.2.)

AI AND HUMAN FEEDBACK:
– The Enlarged Board explains the review standard for non-admission decisions under the RPBA. Because non-admission can strongly affect a party’s ability to be heard, review is not limited to cases of arbitrariness.
– A manifestly incorrect application of Articles 12 or 13 RPBA can amount to a violation of the right to be heard, even though the petition in this case was ultimately not successful.
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T 0035/20; 2024-5-17; Double press to pay/APPLE

ORIGINAL-KEYWORDS:
Inventive step – double press on button with integrated fingerprint sensor to pay with phone – (yes – not a mere user requirement)

ORIGINAL-HEADNOTE:
The term „user requirement“ is often used when assessing the technicality of features of user interfaces. The Board understands the term to refer to needs and preferences defined by the end user of a system, who does not possess any technical understanding of the system. Under the Comvik approach (T 641/00 – Two identities/COMVIK), such user requirements may appear in the formulation of the technical problem as they do not make any technical contribution. It was confirmed in T 1463/11 – Universal merchant platform/CardinalCommerce that non-technical (user) requirements cannot normally specify any technical matter or be based on technical considerations. That is not to say that they cannot refer to the underlying technical system at all. Just like the technically skilled person, the user starts from the technical system of the prior art; user requirements do not appear in a vacuum. Thus, if the user uses software on a computer, he may formulate non-technical requirements relating to this software (see e.g. T 2019/12 – Angabe einer Order/Lacqua). Analogously, if, as in the present case, the system is a mobile phone, the user may formulate requirements relating to the use of the phone, as long as they do not involve technical considerations or require technical understanding. (See point 8 of the reasons)

AI AND HUMAN FEEDBACK:
– The Board clarifies what counts as a non-technical user requirement in COMVIK analysis. Such requirements are needs or preferences of an end user without technical understanding, and they may be included in the objective technical problem without contributing to inventive step.
– The headnote also limits that concept. User requirements may refer to the known technical system, such as a mobile phone, but they must not involve technical considerations or technical understanding. The decision therefore helps distinguish interface design preferences from technical contributions.
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