5.1.1 General rule that RPBA 2020 immediately applicable and exceptions

A revised version of the Rules of Procedure of the Boards of Appeal (RPBA 2020) entered into force on 1 January 2020 and – unless otherwise provided in the transitional provisions in Art. 25 RPBA 2020 – the previously applicable version (RPBA 2007) ceased to be in force from then (Art. 24(1) and (2) RPBA 2020). These transitional provisions provide that the RPBA 2020 apply to any appeal pending on, or filed after, their entry into force on 1 January 2020 (Art. 25(1) RPBA 2020). However, some exceptions to this general rule were made in Art. 25(2) and (3) RPBA 2020.

As explained e.g. in T 2227/15, Art. 25(2) and (3) RPBA 2020 is clearly directed to and limited to two narrow exceptions, i.e. to provisions governing the parties' submissions made either at the outset of the appeal proceedings, which marks the first level of the convergent approach (initial stage), or at an advanced stage of the appeal proceedings, which corresponds to the third level of the convergent approach (ultimate stage) (on the convergent approach under the RPBA 2020, and its three levels in particular, see chapter V.A.4.1.2). Only those provisions which specifically govern the initial stage and the ultimate stage are excluded from an immediate application of the RPBA 2020, leaving the intermediate stage, i.e. the second level of the convergent approach (Art. 13(1) RPBA 2020), to be governed by the general rule (providing for immediate applicability) set out in Art. 25(1) RPBA 2020.

This means that the RPBA 2007 provisions on new submissions have continued to apply – albeit increasingly rarely – as follows: for the initial stage in appeal proceedings, Art. 25(2) RPBA 2020 provides that Art. 12(4) to (6) RPBA 2020 does not apply to any statement of grounds of appeal filed before the date of the entry into force or any reply to it filed in due time; Art. 12(4) RPBA 2007 continues to apply instead in such cases. For the final stage in appeal proceedings, Art. 25(3) RPBA 2020 provides that Art. 13(2) RPBA 2020 does not apply where the summons to oral proceedings or a communication under R. 100(2) EPC was notified before 1 January 2020; Art. 13 RPBA 2007 continues to apply instead in such cases. For more details of the transitional provisions and how they have been interpreted by the boards, see chapters V.A.4.3.2, V.A.4.4.2 and V.A.4.5.2.

The earlier case law on Art. 12(4) and 13 RPBA 2007 remains relevant for another reason too. As pointed out in the preparatory materials and the subsequent case law, the revised provisions on new submissions are partly based on this case law around their forerunners (see the explanatory remarks on Art. 12(4) and (6) RPBA 2020 in CA/3/19, p. 36 and 38, supplementary publication 2, OJ 2020; on Art. 13(1) RPBA 2020, see e.g. T 634/16 and T 700/15, in which it was held that Art. 13(1) RPBA 2020 essentially codified the case law on Art. 13(1) RPBA 2007; see also chapter V.A.4.5.2b)). As a result, in decisions applying the RPBA 2020 provisions, the boards also refer to decisions from the time before their entry into force, especially when those provisions (aside from editorial changes) have the same wording as their RPBA 2007 equivalents (see e.g. T 1439/16 on Art. 15(3) and (6) RPBA 2020).

In view of the above, and because Art. 12 and 13 RPBA 2007 still apply in some cases by virtue of the transitional provisions, the chapters on these articles have been kept in this edition of the book. Nevertheless, the general rule since 1 January 2020 is that the RPBA 2020 apply, and the related case law is reported in chapter V.A.4. "New submissions on appeal – case law on RPBA 2020.