a) Principles 

In T 247/20 and T 2988/18 the boards, based on a systematic interpretation of Art. 13(1) and (2) RPBA 2020 and Art. 12(2) RPBA 2020, Art. 12(3) RPBA 2020 and Art. 12(4) RPBA 2020, held that an amendment to a party's appeal case was a submission which was not directed to the requests, facts, objections, arguments and evidence relied on by the party in its statement of grounds of appeal or its reply. In other words, it went beyond the framework established therein.

This definition was explained in T 247/20 as follows: the RPBA 2020 contained no definition of "amendment to a party's appeal case", but they assisted in defining what was meant by an "amendment" and by "a party's complete appeal case". Art. 12(3) RPBA 2020 required that the statement of grounds of appeal and the reply contain "a party's complete appeal case". This meant that they needed to set out why the decision under appeal should be reversed, amended or upheld, and should specify expressly "all the requests, facts, objections, arguments and evidence relied on". Art. 12(4) RPBA 2020 defined what was meant by an amendment vis-à-vis the first-instance proceedings, namely everything that did not comply with Art. 12(2) RPBA 2020. In effect, an amendment was – apart from a clearly defined exception – what was not "directed to the requests, facts, objections, arguments and evidence on which the decision under appeal was based". The board then transferred this definition to amendments to a party's appeal case. In the case in hand, the arguments which the appellant had presented during the oral proceedings and to which respondent 2 objected were all aimed at illustrating, refining or further developing the arguments already presented with the grounds of appeal and at countering the arguments made by respondent 2 in this context and, in the board's view, did not amount to an amendment of the appellant's appeal case. The board added that oral proceedings would serve no purpose if the parties were limited to presenting a mere repetition of the arguments put forward in writing. Instead, parties had to be allowed to refine their arguments and even to build on them, provided they stayed within the framework of the arguments, and of course the evidence, submitted in a timely fashion in the written proceedings.

In J 14/19, the Legal Board also found that, on a systematic interpretation, the question whether a submission resulted in an "amendment to a party's appeal case" within the meaning of Art. 13 RPBA 2020 had to be answered using the list of possible components of an appeal case in Art. 12(2) RPBA 2020. It too concluded that submissions not directed to requests, facts, objections, arguments or evidence relied on in the statement of grounds of appeal or in the reply amounted to an amendment to the appeal case. That also followed from Art. 12(3) RPBA 2020, which likewise referred to those components.

In T 100/18, however, the board found that, while Art. 12(3) RPBA 2020, invoked by the appellant (opponent), set out requirements to be met by the statement of grounds of appeal and the reply, it did not define what was meant by an amendment to an appeal case. The board thus looked only at whether the requirements under Art. 12(2) RPBA 2020 had been met. The content of the letter at issue in the case in hand, which had not been received until after expiry of the period for the reply, did not go beyond the requests, facts, arguments and evidence dealt with in the decision under appeal. It therefore met the requirements of Art. 12(2) RPBA 2020 and was aimed at achieving the main purpose of the appeal proceedings, namely a review of the decision under appeal in a judicial manner.

In J 14/19 the Legal Board also held that, at the level of the EPC, the possibility of refusing to admit late-filed submissions was provided for in Art. 114(2) EPC (supplemented by Art. 123(1) EPC for amendments to a patent or patent application). Under Art. 114(2) EPC, a late-filed submission containing factual elements could be disregarded.

The board in T 482/18 only partly endorsed the view taken in T 1914/12 that the boards had no discretion when it came to admitting late-filed arguments based on facts already at issue in the proceedings. Art. 114(2) EPC 1973 (left unchanged by the EPC 2000 revision) was not a basis for rejecting arguments. However, it interpreted "argument" narrowly, treating the term as equivalent to submissions concerning interpretation of the law (on this see, chapter V.A.4.2.2 l) and V.A.4.2.2 n) "New objection based on document already on file – new arguments with factual elements"). It also rejected the view that facts apparent from the patent documents were part of the proceedings without having been expressly asserted (see chapter V.A.4.2.2 l)).

Several decisions have pointed out that submissions made by a party during the preceding administrative proceedings are not automatically part of any subsequent appeal proceedings where they have not been reiterated in a substantiated manner at the outset of those appeal proceedings (see e.g. T 1577/19, T 276/17 and T 2024/16, reported in chapter V.A.4.2.2 b) "Submissions at first instance not automatically part of appeal case"). In T 1439/16 the board underlined that it was the appellant who defined the extent of the appeal and that, according to Art. 12(3) RPBA 2020, the statement of grounds of appeal had to contain a party's complete case. It had been the choice of the appellant in the case in hand to make an objection of added subject-matter only to claim 1 and not to claim 8 in the statement setting out the grounds of appeal.

In T 319/18 the board pointed out that it was established jurisprudence of the boards that requests that were not self-explanatory became effective only on the date on which they were substantiated (see. e.g. T 1732/10). See also T 2457/16. See also chapter V.A.5.12.6 "Unsubstantiated requests" on the case law under the RPBA 2007.