Zusammenfassung von Art 13(2) RPBA 2020 für die Entscheidung T0084/19 vom 21.10.2022

See also abstract under R. 6 EPC In T 84/19 the respondent (patent proprietor) filed auxiliary request 1 only two weeks before the oral proceedings. In support of admittance, the respondent argued this request merely consisted in the deletion of claim 14 of the main request and thus could not be regarded as an amendment of the party's appeal case. The remaining subject-matter did not imply a change of the legal and factual framework of the appeal, and no objections were raised against the subject-matter remaining in appeal proceedings. The board did not agree with the respondent's argumentation. With regard to the question of whether a new request filed after the statement of grounds of appeal or the reply thereto constituted an amendment to the party's appeal case within the meaning of Art. 13(2) RPBA 2020, the board concurred with the line of case law considering that a new request filed after the statement of grounds of appeal or the reply thereto with a set of claims that was different to that of the previous requests was to be regarded as an "amendment to the party's appeal case", even if the amendment consisted only in the deletion of claims and the remaining claims were already part of a request in appeal (see e.g. T 2295/19, T 2920/18, T 2091/18, T 494/18 and T 247/20). In the board's view, this interpretation followed from a systematic reading of the RPBA, according to which the statement of grounds of appeal and the reply thereto must contain a party's complete appeal case (Art. 12(3) RPBA 2020). Moreover, a party's appeal case should be directed inter alia to the requests on which the decision under appeal was based (Art. 12(2) RPBA 2020). Accordingly, all parties' requests had to be expressly specified at the onset of the appeal proceedings. The filing of a new claim request at later stages of the appeal proceedings had to be considered an amendment of the party's case, a procedural step that formally changed the factual and legal situation of the appeal proceedings. The board decided to exercise its discretion under Art. 13(2) RPBA 2020 and not to admit auxiliary request 1 into the appeal proceedings. It underlined that the respondent would have had reasons to file this amendment already in reply to the statement of grounds of appeal, since the subject-matter of auxiliary request 1 had not been attacked by the appellant at that stage of the proceedings. The respondent neither provided an explanation for the late filing of auxiliary request 1 nor referred to any circumstances, let alone exceptional ones, that had prevented the respondent from filing auxiliary request 1 at the onset of the appeal proceedings. The board also failed to see any justification for the late filing of this amendment. The board did however admit auxiliary request 2 under Art. 12(4) RPBA 2007. This request had been filed during the proceedings before the first instance as well as at the outset of the appeal proceedings. Since no ground of opposition had been raised against the subject-matter of auxiliary request 2, the board concluded that this set of claims complied with the requirements of the EPC.