The patentee's main request had been rejected and, nonetheless, the board comes to the surprising conclusion that the patentee was not adversely affected by the decision. How this?
The main request essentially corresponded to claim 1 as granted with further dependent claims and the auxiliary request essentially corresponded to claim 3 as granted with further dependent claims. Claim 2 was not an issue in the 1st instance.
Well, the patentee did not really challenge the decision to reject the main request (corresponding to claim 1 as granted followed by dependent claims):
2.3.2 The grounds of appeal do not address this request at all, let alone indicate any reason for setting aside or amending the decision of the Opposition Division's decision that claim 1 of this request lacks novelty over D1. On the contrary, it is apparent from the grounds of appeal that the appellants no longer dispute that D1 discloses a slide nozzle device having all the features set out in claim 1 as granted, as well as in claim 1 of the main request as filed before the Opposition Division (see sections 2 and 3). Hence, the appellants do not challenge the refusal of this claim by the Opposition Division .Rather, the patentee added a further independent claim to the claims as maintained. The new independent claim was based on claim 2 as granted with some further limitations.
2.3.5 The present appeal thus amounts to an attempt to remedy the non-filing of an independent claim based on granted claim 2 in the opposition proceedings, and so aims to extend the protection conferred by auxiliary request 1 allowed by the Opposition Division to the alternative solution of claim 2. This runs contrary to the purpose of appeal proceedings: their function is to give a judicial decision upon the correctness of the decision under appeal. It is certainly not to reopen the opposition proceedings and, as attempted in the present case, give a patent proprietor the opportunity to improve its position by adding an independent claim to a claim set already allowed by the Opposition Division.
2.4 Therefore, in view of the appellants' case, the Board considers that they cannot be regarded as "adversely affected" by the decision of the Opposition Division and thus are not entitled to appeal under Article 107 EPC.I have to admit that I am fairly puzzled by this conclusion. Would it not have been more straightforward hold the claims inadmissible under Rule 12(4) EPC because they could have been presented ... in the first instance proceedings? Or eventually because of lacking substantiation (none of the reasons to reject the main request was addressed?)