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Case Law of the Boards of Appeal

 
 
4.1.1 Legal basis

It is settled case law of the boards of appeal that new requests containing amended claims may exceptionally be admitted in appeal proceedings. According to R. 100(1) EPC, the provisions in R. 137(3) EPC, relating to examination, and in R. 80 EPC, relating to opposition, apply by analogy in appeal proceedings. Under R. 137(3) EPC, further amendments of a European patent application may not be made without the consent of the examining division, while R. 80 EPC provides, in essence, that the description, claims and drawings may be amended if this is occasioned by a ground for opposition under Art. 100 EPC. Moreover, the Rules of Procedure of the Boards of Appeal (RPBA), which were thoroughly revised in 2003, contain detailed provisions placing the admission of subsequent amendments at the boards' discretion. The admissibility of subsequent amendments to a party's submissions (whether they be facts, evidence or requests) was expressly rendered a matter for the board's discretion (see, for a comprehensive account, CA/133/02). When the RPBA were revised again in 2007, the provisions on subsequent amendments were retained, albeit renumbered; on this point, see chapter IV.C.1 "Late submission".