4.5.1 Principles

Art. 13(2) RPBA 2020 implements the third level of the convergent approach applicable in appeal proceedings. Art. 13(2) RPBA 2020 imposes the most stringent limitations on a party wishing to amend its appeal case at an advanced stage of the proceedings, namely after expiry of a period set by the board of appeal in a communication under R. 100(2) EPC or, where no such communication is issued, after notification of the summons to oral proceedings (see document CA/3/19, section VI, explanatory remarks on Art. 13(2) RPBA 2020, supplementary publication 2, OJ 2020; later cancellation of the oral proceedings is immaterial for the application of Art. 13(2) RPBA 2020; see T 2279/16). Art. 13(2) RPBA 2020 provides that any amendment to a party's appeal case made at this stage of proceedings will, in principle, not be taken into account unless there are exceptional circumstances, which have been justified with cogent reasons by the party concerned.

While numerous decisions emphasise that the party needs to show compelling reasons why the circumstances are exceptional (see e.g. T 1107/16, T 2486/16), T 1294/16 points to an exception: Cogent reasons need not be brought forward by the party if the board, of its own motion, finds the circumstances exceptional in view of the purpose of the convergent approach.

In T 2486/16 the board emphasised that a party, when providing its "cogent reasons", should not only identify the circumstances invoked and explain why they were to be regarded as exceptional but also explain why these circumstances had the direct result of preventing it from filing its requests at an earlier stage. Similarly, in T 1707/17 the board held that the cogent reasons referred to in Art. 13(2) RPBA 2020 should include reasons why it was not possible to file the amendment earlier. In T 545/18, however, the board construed "exceptional circumstances" within the meaning of Art. 13(2) RPBA 2020 more broadly and did not require such a causal link between exceptional circumstances and late filing. See also in this chapter V.A.4.5.4b) "Causal link between the exceptional circumstances and the late filing" below.

As regards the meaning of the term "exceptional circumstances", in many decisions the boards considered that exceptional circumstances concerned new or unforeseen developments in the appeal proceedings, such as new objections raised by the board or another party (T 2329/15, see also T 1702/18), whereas the normal course of events could not justify late submissions (see e.g. T 1870/15, T 2539/16). In T 1294/16, however, the board underlined that the motivation for the convergent approach was the procedural economy of the appeal proceedings. Hence, if admittance of a (late-filed) submission was not detrimental to procedural economy, the board considered it appropriate to accept that there were "exceptional circumstances" within the meaning of Art. 13(2) RPBA 2020, provided that this did not adversely affect any other party. See also T 2135/18. In T 713/14 the board, when assessing whether there were exceptional circumstances, took the entire background to the case into account, as well as the fact that the amendments (deletions of alternatives and restriction to embodiments of dependent claims) did not introduce any new issues and that the appellant had had ample opportunity to object to all embodiments claimed. On the interpretation of "exceptional circumstances", see also in this chapter V.A.4.5.4a) below.

In T 1904/16 the board recalled the following in the context of this requirement of exceptional circumstances: Under Art. 12(2) RPBA 2007, which substantially corresponded to Art. 12(3) RPBA 2020, the statement of grounds of appeal and the reply had to contain a party's complete case. Together with the appealed decision, the statement of grounds of appeal and the reply to it determined the subject-matter of an appeal (Art. 12(1) RPBA 2020). The purpose of this provision, under both versions of the Rules of Procedure, was to ensure fair proceedings for all concerned and to enable the board to start working on the case on the basis of the parties' complete submissions.

In T 1294/16 the board discussed the question of how the term "in principle" in Art. 13(2) RPBA 2020 had to be construed. The board discarded the possibility that this term was meant to provide a residue of discretion for the board to admit a request even in the absence of exceptional circumstances (or where no cogent reasons were supplied as justification for them) and concluded that it should be ignored.

In the majority of decisions, the boards first examined whether there were exceptional circumstances and, only if there were, then exercised their discretion as to the admittance of the amendment. With reference to CA/3/19 (section VI, explanatory remarks on Art. 13(2) RPBA 2020), several boards have held that the basic principle of the third level of the convergent approach is that, at this stage of the appeal proceedings, amendments to a party's appeal case are not to be taken into consideration and that only a limited exception is provided for, which requires a party to present compelling reasons which justify clearly why the circumstances leading to the amendment are indeed exceptional in the particular appeal (T 689/15, T 552/16 and T 2778/17). In the same vein and again with reference to CA/3/19, the boards in T 989/15, T 1107/16, T 954/17 and T 709/16 stated that, if exceptional circumstances were shown to exist, a board could exercise its discretion and decide to admit the amendment.

In T 709/16 it was emphasised that, if the board accepted the party's argument that the circumstances were exceptional, it was still within the board's discretion whether to admit the request into the appeal proceedings (see also T 2010/15). Likewise, in T 1080/15 the board noted that, although an objection raised for the first time by the board could qualify as an exceptional circumstance justifying the admission of a request, it did not give the appellant carte blanche to amend the claims at wish. This two-step evaluation (exceptional circumstances, discretion) is reflected in the structure of this chapter.

In other decisions, however, the boards assessed the requirement of exceptional circumstances pursuant to Art. 13(2) RPBA 2020 and the criteria for the exercise of discretion in one step (see e.g. T 2703/16, T 1055/17, T 1790/17, T 713/14, T 917/18).

Several decisions have held (with reference to CA/3/19, section VI) that, at the third level of the convergent approach, the boards of appeal are free to use the criteria set out in Art. 13(1) RPBA 2020 when deciding, in the exercise of their discretion in accordance with Art. 13(2) RPBA 2020, whether to admit an amendment made at this stage of the proceedings (see e.g. T 989/15, T 584/17, T 954/17, T 752/16, T 764/16, T 709/16 and T 995/18). As emphasised by T 2429/17, at the third level of the convergent approach, the board may rely on criteria applicable at the second and first levels of the convergent approach, i.e. those set out in Art. 13(1) RPBA 2020 and Art. 12(4) to (6) RPBA 2020.

In T 2486/16 the board explained that the criteria of Art. 13(1) RPBA 2020 could supplement, but not supplant, the separate requirements of Art. 13(2) RPBA 2020.