4.3.1 Principles

According to established case law the appeal proceedings should normally be based on the facts, evidence and requests which led to the decision under appeal (see e.g. J 12/18, referring to Case Law of the Boards of Appeal, 9th ed. 2019, V.A.4.11.1). This principle is reflected in Art. 12(2) RPBA 2020, which states that, in view of the primary object of the appeal proceedings to review the decision under appeal in a judicial manner, a party's appeal case must be directed to the requests, facts, objections, arguments and evidence on which the decision under appeal was based.

Art. 12(4) RPBA 2020 implements the first level of the convergent approach (see CA/3/19, section VI, explanatory remarks on Art. 12(4) RPBA 2020, supplementary publication 2, OJ 2020). According to Art. 12(4), first sentence, RPBA 2020, parts of a party's appeal case which do not meet the requirements in Art. 12(2) RPBA 2020 are in general regarded as an amendment. It is not an "amendment", however, if the party demonstrates that the parts not meeting those requirements were admissibly raised and maintained in the proceedings leading to the decision under appeal. For decisions on the issue of what is considered an amendment under Art. 12(4) RPBA 2020, see chapter V.A.4.2.1 above. Any amendment may be admitted only at the discretion of the board (Art. 12(4), second sentence, RPBA 2020).

In T 1776/18 the board referred to Art. 114(2) EPC and explained that any submission which has not been made during the first-instance proceedings is in the appeal proceedings considered not to have been submitted in due time within the meaning of this article. Considerations such as whether a party could not have adequately reacted to a request or document filed at a late stage of the first-instance proceedings did not determine whether a submission was late-filed, but were instead relevant to the question of how a board should exercise its discretion (see also CA/3/19, pages 35 and 36, explanatory remarks on Art. 12(4) RPBA 2020).

The requirement that the statement of grounds of appeal and the reply thereto should contain the party's complete case is laid down in Art. 12(3) RPBA 2020 (expressed by substantially identical wording to Art. 12(2) RPBA 2007, as noted in T 1533/15). Under Art. 12(5) RPBA 2020, the board has discretion not to admit any part of a submission by a party which does not meet the requirements in Art. 12(3) RPBA 2020 (see chapter V.A.4.3.5c) "Discretion under Art. 12(5) RPBA 2020" below).

This requirement to provide substantiation also applies to submissions (e.g. requests, see T 534/21) on which the contested decision is based. However, to cover the case law on Art. 12(3) and (5) RPBA 2020 in the context of other provisions in Art. 12 and 13 RPBA 2020, decisions on this requirement are presented in chapter V.A.4, even if they do not relate to "new submissions on appeal".

Art. 12(6), first sentence, RPBA 2020 concerns the admittance of submissions which were not admitted in the proceedings at first instance (see chapter V.A.4.3.6 below). Here again, this provision does not only apply to new submissions in appeal proceedings but will nevertheless be covered in this chapter V.A.4 in the overall context of Art. 12 and 13 RPBA 2020.

Art. 12(6), second sentence, RPBA 2020 relates to submissions which could and should have been submitted during the proceedings at first instance, or were no longer maintained during those proceedings, thereby preventing the department of first instance from taking a decision on them (see chapter V.A.4.3.7 below). According to the explanatory remarks in CA/3/19 on Art. 12(6) RPBA 2020, its first and second sentences reflect established case law on Art. 12(4) RPBA 2007 (on this case law, see also chapter V.A.5.11 "Article 12(4) RPBA 2007" below).

Art. 12(6), second sentence, RPBA 2020 (just as Art. 12(4) RPBA 2007 before) expresses and codifies the principle that each party should submit all facts, evidence, arguments and requests that appear relevant as early as possible so as to ensure a fair, speedy and efficient procedure. An appellant is not at liberty to bring about the shifting of its case to the appeal proceedings as it pleases, and so compel the board either to give a first ruling on the critical issues or to remit the case to the opposition division. Conceding such freedom to an appellant would run counter to orderly and efficient opposition-appeal proceedings. In effect, it would allow a kind of "forum shopping" which would jeopardise the proper distribution of functions between the departments of first instance and the boards of appeal and would be unacceptable for procedural economy generally. See T 101/17, citing T 162/09 and T 1848/12, and T 878/21.

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 chapter V.A.4.1.2).