Zusammenfassung von Art 13(2) RPBA 2020 für die Entscheidung T1906/19 vom 31.05.2023

In T 1906/19 the board raised different objections in its preliminary opinion and the oral proceedings to which the appellant (applicant) immediately reacted each time with the filing of a single new request that addressed the objections. The board explained that it understood the wording of Art. 13(1) RPBA 2020 as laying down a basic rule but leaving some limited leeway for exceptions. The basic rule was that amendments were not considered unless there were exceptional circumstances justified by cogent reasons (by the submitting party). The leeway for deviating from this rule lay in the expression "in principle" ("en principe"; "grundsätzlich"), which the board read roughly as "as a rule", meaning that the provision's basic rule was not entirely without exception. This leeway, when applied, meant that an amendment could be considered despite the absence of exceptional circumstances justified by cogent reasons. In the board's view, this textual understanding of Art. 13(2) RPBA 2020 was supported by systematic and teleological considerations. Art. 13(1) and (2) RPBA 2020 define the second and third levels of the convergent approach. Together with the first level specified in Art. 12(4) RPBA 2020, these provisions set increasingly stringent hurdles for the admission of new requests and other amendments. The board held that this approach for deciding on the admittance of amendments would lose some of its coherence if the boards could exercise discretion on the first two levels but not the third. The board thus interpreted the passage "shall, in principle, not" as indicative of a remaining (though restricted) discretion. It was further not convinced that the lawmaker, as seemingly implied in T 1294/16, had put words without meaning into a provision as important as Art. 13(2) RPBA 2020. Rather, the lawmaker had had the foresight to see that the otherwise harshly-worded Art. 13(2) RPBA 2020 needed a caveat allowing for consideration of the particular circumstances of a case. With regard to the case in hand, the board observed that the appellant had not followed the common practice, when submitting amended requests, of maintaining at least some previous requests. This practice sometimes meant that the board and the parties had to spend considerable time on requests that even the applicant or proprietor no longer thought viable. Instead, the appellant had given the board a single set of claims to consider. While it was true that the request was twice further amended during oral proceedings, these amendments were straightforward, within the limits of the debate, and finally led to a set of claims that was, prima facie, clearly allowable. The succession of requests in the present case was not detrimental to procedural economy. There was no inconvenience for the board, and no other party to the proceedings was affected. The board emphasised that the primary reason for the convergent approach was procedural economy. It would be unfortunate if it were so strictly applied that appellants, in ex parte proceedings, were seriously discouraged from filing a promising and facilitating new request and dropping non-viable requests.