Zusammenfassung von Art 13(2) RPBA 2020 für die Entscheidung T1006/21 vom 30.01.2024

In T 1006/21 both parties requested remittal of the case to the opposition division, albeit under different conditions. The respondents (opponents) also requested that the appellant's (patent proprietor's) request for remittal not be considered for being late-filed. The board recalled that the discretionary decision to remit or not was to be taken ex officio, at any time during the appeal proceedings (see, inter alia, T 1805/14, T 78/17; Case Law of the Boards of Appeal, 10th ed, V.A.9.5) and that a decision on remittal was not dependent on any request by the parties. In the board's opinion, any request for remittal made by a party was therefore not subject to the provisions of Art. 12 and 13 RPBA. Rather, these articles served to take account, within narrow limits (see T 1919/17, T 1913/19), of changes in the facts or the subject-matter of the appeal proceedings ("amendments" within the meaning of Art. 12(4) and 13(1) and (2) RPBA). The board concluded that these provisions were directed at (claim) requests or (allegations of) facts and evidence, i.e. at substantive issues, objections and related arguments (see Art. 12(2) and (4) and Art. 13(1) and (2) RPBA). In contrast, procedural requests were not amendments within the meaning of Art. 12(4) and 13(1) and (2) RPBA. The board specified that procedural requests on questions that have to be taken up ex officio could relate to remittal, as in the case in hand, or to referral to the Enlarged Board of Appeal (Art. 112(1)(a) EPC), the admissibility of the appeal (Art. 110 EPC), (non-)admission and consideration of claim requests, allegations of facts or evidence (Art. 114, R. 116(1) EPC), interruption of proceedings (R. 142 EPC), exclusion of board members (Art. 24(1) and (2) EPC), or the appointment of oral proceedings if expedient (Art. 116(1) EPC). The board further explained that its conclusion also applied to other procedural requests on questions that did not have to be taken up ex officio but only upon request, such as for a change of date of oral proceedings (Art. 15(2) RPBA), acceleration of proceedings (Art. 10(3) RPBA), objections against board members (Art. 24(3) EPC) or according to R. 106 EPC, or requests for stay of proceedings (R. 14 EPC). None of these procedural requests were subject to the provisions of Art. 12 and 13 RPBA. They could therefore be made at any time during the appeal proceedings and had to be considered by the board, regardless of when they were made. Consequently, in the board's view, the question of the late filing of the appellant's request for remittal could not arise in the case in hand or in any other circumstances. Rather, the board had to decide ex officio whether the case should be remitted, irrespective of any request of the parties. In the case in hand, the board did not see any reasons in favour of a remittal.