a) Principles 

In accordance with the principles underlying the RPBA, the statement of grounds of appeal and any reply to it must contain the party's complete case (Art. 12(3) RPBA 2020, essentially the same as Art. 12(2) RPBA 2007). The purpose of this provision – in both its revised and former versions – is to ensure fair proceedings for all parties and to enable the board to start working on the case on the basis of each party's complete submissions (T 2610/16, referring to Case Law of the Boards of Appeal, 9th ed. 2019, V.A.4.12.5; see also T 1904/16, T 113/18 and T 319/18). This provision plays a role in both, the admissibility of the appeal (see V.A.2.6.3g)) and in the admittance in the appeal proceedings of incomplete or unsubstantiated requests, facts, objections, arguments or evidence (see the decisions summarised in this chapter V.A.4.3.5).

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".

A sweeping reference by the appellant to its case in the first-instance proceedings was not sufficient to establish why the contested decision should be reversed. This approach is at odds with the appeal proceedings, in which, the appellant is obliged under Art. 108 EPC, R. 99(2) EPC and Art. 12(3) RPBA 2020, to present a complete case with its statement of grounds of appeal, one that would allow the board and the other parties to understand why the contested decision should be reversed without having to make any further investigations of their own (T 706/17; also set out in T 2117/18 in relation to Art. 12(2) RPBA 2007, which was only amended slightly). See also T 2457/16.

The board in T 1041/21 also deemed sweeping references made by the respondent (patent proprietor; the successful party in the first-instance proceedings) to its case in said proceedings to be inconsistent with the requirement of Art. 12(3) RPBA. Referring to or merely repeating arguments made in the opposition proceedings did not make it immediately clear for either the board or the other party which objections raised by the appellant in its appeal against the main request had been remedied by the amendments made in the auxiliary requests, or to what extent and why. In T 503/20, the board endorsed this view and referred to the wording of Art. 12(3) and (5) RPBA 2020 and the explanatory notes to Art. 12(5) RPBA 2020 (Supplementary publication 2, OJ 2020, p. 57 > 17), according to which a party is required to "specify expressly" all the requests, facts, etc. relied on. On the other hand, see also T 108/20, in which the board took the view that if a party refers to a submission in the first-instance proceedings to which no response was given, a sweeping reference is sufficient for said submission to be part of the appeal proceedings.

Regarding the legal consequences of a failure to meet the complete case requirement, new Art. 12(5) RPBA 2020 provides that a board has discretion not to admit any part of a submission on appeal which does not meet the requirements in Art. 12(3) RPBA 2020. In T 503/20, the board pointed out that it had discretion to admit passages of the reply to the opposition referred to using their specific margin references and that this depended on the specific circumstances of the case in hand. These included whether the impugned decision had been sufficiently discussed and, if the points at issue were irrelevant for this decision, whether it was clear enough from both parties' complete cases which points were being pursued and on what specific basis, and how these related to the opposing party's case.

Providing the required substantiation for a previously unsubstantiated objection does not qualify as a mere refinement. Rather, an objection or a claim request was considered to have been validly submitted only at the time when sufficient substantiation is provided (T 2117/18, T 1191/18; a different view was taken in T 1220/21 in which the board referred to Art. 12(5) RPBA 2020). Fleshing out an incomplete case at a later stage was considered as an amendment within the meaning of Art. 13 RPBA 2020 in e.g. J 3/20, T 2227/15, T 326/16, T 1439/16, T 2796/17 (see also chapter V.A.4.2.2k) "Fleshing out objections not adequately substantiated in the grounds of appeal or reply"). In several decisions the boards have referred to Art. 12(3) RPBA 2020 when exercising their discretion under Art. 13(1) or (2) RPBA 2020 not to admit later submitted amendments of the appeal case (see e. g. T 1439/16 and T 1533/15 and chapter V.A.4.4.6i) below).