Art. 12(4) RPBA empowers the boards to refuse to admit requests which could have been presented or were not admitted in the first-instance proceedings. In several decisions, they have cited the principles developed by the Enlarged Board of Appeal in G 9/91 and G 10/91 (OJ 1993, 408, 420) for the inter partes appeal procedure provided for in the EPC (see point 4.3.2). Art. 12(4) RPBA is consistent with the principles developed by the Enlarged Board in relation to the application of Art. 113 and 114 EPC in opposition-appeal procedures (T 2102/08). The boards of appeal thus retain, as a review instance, discretion to refuse new material, including requests (claim sets) not submitted during opposition proceedings (T 240/04, T 1705/07, T 23/10, T 1525/10). This ensures the fair and reliable conduct of the judicial appeal proceedings (T 23/10, T 1165/10). The admission of new claim requests thus remains a matter of discretion, which may or may not be exercised in a party's favour, on the basis of the facts of the individual case. This legal principle has also been confirmed by the Enlarged Board of Appeal (R 10/09, R 11/11).
Art. 12(4) RPBA instructs us that consideration is unlikely to be given to new submissions that should have been presented in the first-instance proceedings (T 339/06, T 416/07). This provision penalises an infringement of the duty to facilitate the firstinstance proceedings, i.e. a failure to display due cooperation by submitting facts, evidence and requests as required by a certain point in the proceedings, and so serves to ensure compliance with the requirement of a fair procedure and to expedite processing of the case (T 28/10).
The discretionary power under Art. 12(4) RPBA has to be exercised appropriately, which requires the appeal board to consider and weigh up the relevant factors having regard to the particular circumstances of each case (T 23/10, T 1525/10).
In T 144/09, the board noted that the applicability of Art. 12(4) RPBA is not restricted by the time limit for filing the grounds of appeal or any reply thereto. Indeed, a restriction in that sense would not seem to serve any useful purpose and might even result in a possibility of artificially circumventing Art. 12(4) RPBA, irrespective of whether Art. 13(1) RPBA might be a further provision of the rules of procedure which could provide a different barrier to filing such requests.
In both R 11/11 and R 13/11 the respective petitioners complained that the board of appeal decided in its discretion under Art. 12(4) RPBA not to admit the petitioner's auxiliary requests. The Enlarged Board held that its case-law clearly showed that petition proceedings may not be used to review the exercise by a board of appeal of a discretionary power if that would involve an impermissible consideration of substantive issues. This has also been confirmed in the specific context of the discretion in Art. 12(4) RPBA.