n) Submissions concerning interpretation of the law 

In T 2988/18 the board observed that there was no definition of the term "argument" in the RPBA 2020. In G 4/92 (OJ 1994, 149) the Enlarged Board had contrasted arguments with grounds or evidence and suggested that arguments "are reasons based on the facts and evidence which have already been put forward". In the board's view, this left open the question whether the type of argument made by the appellant, namely one which concerned the Enlarged Board's interpretation of Art. 123(2) EPC, also fell under the ambit of Art. 13(2) RPBA 2020. The board explained that arguments pertaining to interpretation of the law were generally accepted at any stage of the proceedings (with reference being made to sources of German and English law). This had been recognised in the explanatory remarks to the RPBA 2020, according to which submissions of a party which concerned the interpretation of the law were not an amendment (with reference to Supplementary publication 1, OJ 2020, 218>178). The board concurred with this view. It further noted that the appellant's argument was essentially that the principle set out in headnote 2 of G 1/93 (OJ 1994, 541) applied to the present case. This was precisely what was meant by the passage of the explanatory remarks to the RPBA 2020 referred to above, because an argument about the interpretation of the law would naturally concern how that interpretation applied to the facts of the case before the board.

In T 482/18 the board endorsed the view taken in T 1914/12 that the boards did not have any discretion when it came to admitting late-filed arguments based on facts already at issue in the proceedings, on the ground that Art. 114(2) EPC 1973 (identical to Art. 114(2) EPC) did not provide a basis for rejecting arguments. Nevertheless, it interpreted "argument" narrowly, treating the term as equivalent to submissions concerning interpretation of the law.

In J 14/19 the Legal Board, noting that late-filed submissions with factual elements could be disregarded under Art. 114(2) EPC, held that "arguments" in Art. 12(2) RPBA 2020 had to be interpreted in such a way that the meaning arrived at was in line with Art. 114(2) EPC. Submissions of a party as to how the law should be interpreted did not have a factual dimension. Such submissions concerning only interpretation of the law were therefore not covered by the term "arguments" in Art. 12(2) RPBA 2020, which instead referred to submissions with both factual and legal elements, of the kind as a rule made in relation to patentability issues. The Legal Board thus concluded that submissions concerning only interpretation of the law did not result in an amendment within the meaning of Art. 12(4) RPBA 2020. Ultimately, this conclusion was confirmed by the explanatory remarks on Art. 12(4) RPBA 2020 (CA/3/19, point 54 and related part of table in section VI, explanatory notes on Art. 12(4) RPBA 2020), and it applied by analogy to Art. 13(1) and (2) RPBA 2020 too. The Legal Board found that the submissions at issue in the case in hand, which the appellant had not filed until after the summons to oral proceedings, were (i) a reiteration of or elaboration on submissions already made in the grounds of appeal, (ii) submissions concerning only the interpretation of the EPC or (iii) submissions on German law directly linked to the statements on that law which the Legal Board had first made in its communication under Art. 15(1) RPBA 2020. It thus took the submissions into account under Art. 13(2) RPBA 2020.