4.1.2 Primary object of appeal proceedings and the "convergent approach" to amendments made to party's case

In line with the principle set out in decision G 9/91 (OJ 1993, 408, point 18 of the Reasons; see also e.g. T 2194/14, T 1102/15, T 343/16 and T 632/16), the RPBA 2020 highlight in their new Art. 12(2) RPBA 2020 that the primary object of the appeal proceedings is to review the decision under appeal in a judicial manner. Numerous decisions have referred to this principle in their reasoning when applying the provisions of the RPBA 2020 governing new submissions on appeal (see e.g. J 3/20, T 2214/15, T 786/16, T 256/17, T 2778/17, T 1422/17, T 1456/20).

One of the consequences of the boards' function being above all to review the appealed decision is that, as the appeal proceedings progress, the possibilities for parties to amend their case become increasingly limited (see e.g. T 1370/15, T 2778/17 and CA/3/19, section V.B.c), point 48, supplementary publication 2, OJ 2020). This "convergent approach" (referred to in numerous decisions interpreting the relevant provisions of the RPBA 2020; see. e.g. T 2214/15, T 2227/15, T 2279/16, T 2778/17) consists of three levels, now regulated in new Art. 12(4) RPBA 2020 and Art. 13(1) RPBA 2020 and Art. 13(2) RPBA 2020. Which of these provisions apply depends on the point in the proceedings at which a party changes its case:

– at the outset of the appeal proceedings – first level of convergent approach – Art. 12(4) RPBA 2020;

– after the party has filed its grounds of appeal or its reply – second level of convergent approach – Art. 13(1) RPBA 2020);

– after the period set in a communication under R. 100(2) EPC has expired or a summons to oral proceedings has been notified – third level of convergent approach – Art. 13(2) RPBA 2020.

These provisions are, where their various individual requirements are met, cumulatively applicable. The requirements of the first level of the convergent approach – i.e. those set out in Art. 12(4) to (6) RPBA 2020 – apply throughout the appeal proceedings, i.e. also at the stages of the appeal proceedings which are governed by Art. 13(1) and (2) RPBA 2020 (see CA/3/19, section VI, explanatory remarks on Art. 12(6) RPBA 2020, last paragraph; the table setting out the amendments to the RPBA and the explanatory remarks have also been published in Supplementary publication 2, OJ 2020). By way of express reference to Art. 12(4) to (6) RPBA 2020, it is clarified in Art. 13(1) RPBA 2020 that the criteria set out in those provisions apply mutatis mutandis to any submissions made after a party has filed its grounds of appeal or its reply. T 2486/16 and T 2429/17 are examples of decisions in which these criteria have been applied at the third stage of the proceedings. All decisions pertaining to the requirements of the first level of the convergent approach set out in Art. 12(4) to (6) RPBA 2020 are reported in chapter V.A.4.3 "First level of the convergent approach – submissions in the grounds of appeal and the reply – Article 12(3) to (6) RPBA 2020", irrespective of the stage of the proceedings at which the submissions concerned were filed.

As regards Art. 13(1) RPBA 2020, numerous decisions have confirmed that the criteria of this provision may also be applied at the third level of the convergent approach (see e.g. T 2227/15 and T 584/17, which gives a detailed explanation based on the travaux préparatoires in document CA/3/19, section VI, explanatory remarks on Art. 13(2) RPBA 2020, fourth paragraph). For more details on the application of the criteria of Art. 13(1) RPBA 2020 at the third level, see chapter V.A.4.5.9 "Discretion under Article 13(2) RPBA 2020 – principles".

The provisions of Art. 12(4) RPBA 2020 and Art. 13(1) RPBA 2020 and Art. 13(2) RPBA 2020 only apply to cases in which a party has amended its case (i.e. its case presented at first instance as far as Art. 12(4) RPBA 2020 is concerned or its appeal case as far as Art. 13(1) and (2) RPBA 2020 are concerned). With regard to Art. 13(2) RPBA 2020, the board in T 247/20 explained that the test to be applied was a two-fold one. The first question was whether the submission objected to was an amendment to a party's appeal case. If that question was answered in the negative, then the board had no discretion not to admit the submission. If, however, that question was answered in the affirmative, then the board needed to decide whether there were exceptional circumstances, justified by cogent reasons, why the submission was to be taken into account (two-step procedure confirmed in e.g. J 14/19, T 2988/18 and T 528/19). Decisions on this preliminary issue of whether new submissions are an amendment are summarised in chapter V.A.4.2 "Amendment to a party's case".

As noted by the board in T 2227/15, the transitional provisions in Art. 25 RPBA 2020 systematically reflect the structure relating to the admissibility of parties' submissions during appeal proceedings, which, according to the RPBA 2020, is characterised by a convergent approach, divided into three different stages. Art. 25(2) and (3) RPBA 2020 is clearly directed to and limited to two narrow exceptions. Only those provisions which specifically govern the initial stage and the ultimate stage are excluded from an immediate application of the RPBA 2020, leaving the intermediate stage, i.e. the second level of the convergent approach (Art. 13(1) RPBA 2020), to be governed by the general rule set out in Art. 25(1) RPBA 2020. Thus, where the summons to oral proceedings or a R. 100(2) EPC communication was notified before 1 January 2020, Art. 13(1) RPBA 2020 applies simultaneously with Art. 13(1) and (3) RPBA 2007 (see e.g. T 634/16, T 32/16, T 2227/15). See also chapters V.A.4.3.2, V.A.4.4.2 and V.A.4.5.2 for more details on the application of the transitional provisions. Decisions in which, based on the relevant transitional provisions, the boards applied Art. 13(1) RPBA 2020 (and, if appropriate, Art. 13(1) and (3) RPBA 2007) to submissions not filed until after notification of the summons to oral proceedings are – even though this means they were filed at the final stage in the proceedings – reported in chapter V.A.4.4. "Second level of the convergent approach –submissions made after filing of grounds of appeal or reply – Article 13(1) RPBA 2020".