4.3.7 Submissions that should have been submitted or which were no longer maintained at first instance – Article 12(6), second sentence, RPBA 2020
This section has been updated to reflect case law and legislative changes up to 31 December 2023. For the previous version of this section please refer to the "Case Law of the Boards of Appeal", 10th edition (PDF). |
(i) Examples of new submissions admitted
In T 1734/20 the opposition division’s decision was based on a misconception of data in an experimental report submitted by the appellant (opponent). The appellant became aware of this only after the written decision had been issued and filed, with the statement of grounds of appeal, a new report which contained identical data apart from additional information aimed at preventing the misconception. The board considered that these circumstances justified the admittance under Art. 12(6) RPBA 2020.
In T 2043/20 the board, applying Art. 12(6), second sentence, RPBA 2020, considered that the third auxiliary request in appeal, which was based on the second auxiliary request filed before the examining division, but in which certain claims had been deleted, responded to an objection under R. 43(2) EPC. But it also held that this request could have been filed before the examining division, as the objection had already been present in the annex to the summons. However, since the new request overcame the R. 43(2) EPC objection and did not constitute a complex amendment, the board admitted it.
(ii) Counter-examples
In T 1522/21 claim 1 under consideration corresponded to claim 1 as granted. For this reason the board could not see any circumstances justifying admitting new, late-filed evidence (D1 and O9) against this claim. The board did not see prima facie relevance of the new evidence as an aspect to be taken into account.
In T 765/20, the board found that potential prima facie relevance was not critical and did not admit a document that had been submitted for the first time with the grounds of appeal. See however also T 1017/20 in which the board considered that, in the particular situation of the case, the prima facie compliance of the main request on appeal with the provisions of Art. 100 b) EPC formed part of the circumstances of the appeal case to be taken into account for the purpose of applying Art. 12(6) RPBA 2020.
For a further example decision in which the board did not accept that the circumstances in the appeal proceedings justified the admittance of the amendment of the appellant’s case, see T 608/20. See T 1094/22 for an example of a decision in which the board noted that the appellant had not submitted any justifying circumstances.