4.1.1 Legal basis
Under Art. 114(1) EPC, the EPO is obliged to examine the facts of its own motion, and in doing so, it is not restricted to the facts, evidence and arguments provided by the parties and the relief sought. According to Art. 114(2) EPC, however, the EPO may disregard facts or evidence which are not submitted in due time by the parties concerned (on the application of these principles in opposition proceedings, see also chapter IV.C.4. "Late submission of documents, lines of attack and arguments ").
Earlier case law already pointed out that the wording of Art. 114(1) EPC 1973 (Art. 114 EPC left unchanged by the EPC 2000 revision) does not mean that the boards of appeal have to conduct rehearings of the first-instance proceedings, with unfettered right, and indeed obligation, to look at all fresh matter regardless of how late it was submitted. Such an interpretation of Art. 114(1) EPC 1973 takes it out of the context not only of the remainder of the article, namely Art. 114(2) EPC 1973, but also of Art. 111(1) EPC 1973 (the EPC 2000 revision entailed only minor editorial changes to the English and French versions). When Art. 114(1) EPC 1973 is construed in its proper context, it becomes evident that there is a clear limit on the scope of any new matter that may be introduced on appeal by the parties or by the board itself, because cases on appeal must be and remain identical or closely similar to those on which the first-instance decisions were rendered (T 97/90, OJ 1993, 719, cited in T 951/91, OJ 1995, 202; see also T 26/88, OJ 1991, 30, where it was stated that the essential function of the appeal procedure was to determine whether the decision issued by a department of first instance was correct on its merits; T 229/90; T 611/90, OJ 1993, 50; T 339/06 and T 931/06).
Facts and evidence submitted for the first time in appeal proceedings may be disregarded by the boards of appeal as a matter of discretion under Art. 114(2) EPC 1973, which limits the boards' inquisitorial duties under Art. 114(1) EPC 1973 (T 326/87, OJ 1992, 522).
In T 482/18 the board dealt with whether restricting the admission of amendments as provided for in the Rules of Procedure of the Boards of Appeal (RPBA) that entered into force on 1 January 2020 was essentially compatible with the principle of ex officio examination and concluded that it was. On this point, it cited G 9/91 and G 10/91 (OJ 1993, 408 and 420), according to which the main purpose of inter partes appeal proceedings was to give the losing party an opportunity to challenge the opposition division's decision on its merits and it was justified to apply Art. 114(1) EPC 1973 in a generally more restrictive manner on appeal than in opposition proceedings.
On the review of discretionary decisions taken by departments of first instance on new submissions in proceedings before them, see chapter V.A.3.4.5.
It is settled case law of the boards of appeal that new requests containing amended claims may exceptionally be admitted in appeal proceedings. According to R. 100(1) EPC, the provisions in R. 137(3) EPC, relating to examination, and in R. 80 EPC, relating to opposition, apply by analogy in appeal proceedings. Under R. 137(3) EPC, further amendments of a European patent application may not be made without the consent of the examining division (for details, see chapter IV.B.2.4 "Amendments under Rule 137(3) EPC"), while R. 80 EPC provides, in essence, that the description, claims and drawings may be amended if this is occasioned by a ground for opposition under Art. 100 EPC (for details, see chapter IV.C.5.1.2 "Amendments occasioned by a ground for opposition – Rule 80 EPC").
In R 6/19 the Enlarged Board of Appeal held that Art. 123(1) EPC was the basis for the board's discretion whether or not to admit claim requests in appeal proceedings (see also J 14/19 and T 966/17, the latter referring to Art. 123(1), first sentence, EPC, read together with R. 79(1) and 81(3) EPC).