5.5.1 Whether discretion conferred under Article 13(3) RPBA 2007

Amendments sought to be made after the oral proceedings had been arranged were already subject to strict admission criteria under Art. 13(3) RPBA 2007, according to which they were not to be admitted "if they raise issues which the board or the other party or parties cannot reasonably be expected to deal with without adjournment of the oral proceedings." On the current position under the the RPBA 2020, see chapter V.A.4.5. "Third level of the convergent approach – submissions filed after notification of summons or after expiry of period specified in R. 100(2) EPC communication – Article 13(2) RPBA 2020".

The board in T 232/08 considered that this meant the parties' right to be heard and/or procedural economy took precedence over other considerations; accordingly, in some decisions, the boards took the view that the provision left the decision-making board no room for discretion (see e.g. T 958/05, T 334/06, T 1847/08, T 2085/08, T 253/10, T 566/10, T 989/10, T 2189/11, R 5/11).

In much of the case law, however, the boards considered that Art. 13(1) and (3) RPBA 2007 left them room for discretion even in the period after oral proceedings had been arranged (see e.g. T 87/05, T 233/05, T 427/05, T 642/06, T 518/08, T 183/09, T 392/09, T 1457/09, T 1108/10, T 236/11, T 633/16, T 656/16, T 691/16, T 1439/16, T 2591/16, T 1801/17). In T 233/05 the board explained that Art. 13 RPBA 2007 reflected both the right to be heard (Art. 113 EPC 1973) and the discretionary power of a board to disregard facts or evidence which were not submitted in due time (Art. 114(2) EPC 1973). This was particularly true if such amendments were made at a very late stage, as was the case after oral proceedings had been arranged (Art. 13(3) RPBA 2007). Other decisions in which the boards referred to Art. 13(3) RPBA 2007 (or Art. 10b(3) RPBA 2003) and Art. 114(2) EPC include e.g. T 488/05, T 734/07, T 1314/10 and T 139/12.

The boards repeatedly held that amendments at a late stage were justified if they were a reasonable response to unexpected developments in the proceedings (see e.g. T 183/09, T 391/11, T 2385/11, T 1869/10).

In T 671/08 the late-filed argument was exceptionally admitted despite causing adjournment of the oral proceedings. The board considered the objection of insufficient disclosure filed by the appellant (opponent) just under two weeks before the oral proceedings to be a fundamental one that could not be ignored. The board stated that the fundamental nature of the new objection would have rendered any discussions on novelty and inventive step meaningless, had it been left unresolved. This case was an exception to the principles set out in Art. 13(3) RPBA 2007 where amendments to a party's case should not be admitted into the proceedings when their admission would lead to an adjournment of the oral proceedings.