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Under Art. 13(3) RPBA 2007, amendments made after oral proceedings have been arranged cannot be admitted if they raise issues which the board or the other party or parties cannot reasonably be expected to address without an adjournment of the oral proceedings.
The general interest in efficient conduct of the appeal procedure is an important factor to be considered where it is sought to introduce evidence or requests into the proceedings after arrangement of the oral hearing. Depending on the circumstances, new submissions or requests may be disregarded if an adjournment is required before the proceedings can be closed (T 764/03).
In T 133/04, auxiliary requests were filed after the oral proceedings had been arranged and during those proceedings. The board held that, since no new objections had been raised during the appeal proceedings, there was no manifest need to submit new requests after filing the statement of grounds of appeal. Nor had the appellant provided satisfactory evidence that the late-filed requests were apt to take better account of the reasons for the decision than those filed with the statement of grounds of appeal (see also T 50/98).
In T 476/03 the Board noted that the auxiliary requests were filed 3 days before the one month time limit in advance of the oral proceedings. These requests were thus filed in due time within the time limit as set out in the communication of the Board. Consequently, these auxiliary requests were not considered to be late filed.
In T 81/03, the board found that requests filed shortly before the minimum deadline set by it in the summons to the oral proceedings had to be regarded as belated where they contained points which could only be dealt with properly in an additional written phase.
Moreover, in T 253/06, the board held that it was permissible under Art. 13(3) RPBA 2007 to regard as belated auxiliary requests filed after oral proceedings had been arranged but within the prescribed period, if those requests were not substantiated, i.e. not accompanied by reasons explaining why the amendments had been made and how they were intended to overcome the objections raised in the course of the proceedings. In such cases, neither the board nor the other parties to the proceedings could reasonably be expected to consider these points, especially if there were a large number of requests and the features of the claims raised new aspects. The board cited T 888/02, in which it was found that, having regard to Art. 125 EPC 1973, the need to treat all the parties fairly precluded the admission of such requests.
Similarly, in T 1443/05, the board refused to admit the auxiliary request under Art. 13(3) RPBA 2007 because, as a result of its late filing, the question whether it met the requirements of Art. 123(3) EPC 1973 could not be answered without adjourning the oral proceedings (see also T 1026/03, T 1305/05, T 455/06).