Picked up this week in the PLC IPIT & Communications weekly e-mail last Friday was news of a European Patent Office (EPO) Board of Appeal decision in Case T 0911/06 - 3.5.02 Hybrid generator apparatus/DA PONTE, 11 November 2009. This was a ruling to the effect that the EPO is not required to consider grounds of appeal in the order in which they are placed by an appellant.
This was an appeal against the refusal to uphold a patent as granted. In its grounds of appeal the appellant first proposed amendments to the patent and then requested a decision on the correctness of the refusal of the Opposition Division to maintain the patent as granted. While grounds of appeal are generally addressed in the order in which they are made, this might lead to a situation in which a "higher-ranking" request would be dealt with without having considered the decision concerning the status of the patent which was the subject of the appeal in the first place. Such an outcome, said the Board of Appeal, was both illogical and inconsistent with the spirit of the appeal procedure; it could also have the effect of depriving other parties of their rights regarding the original decision.