Zusammenfassung von Art 13(2) RPBA 2020 für die Entscheidung T2465/19 vom 13.07.2023

In T 2465/19 the claims and the adapted description (main request) had been filed as a response to the express invitation of the board in its communication under Art. 15(1) RPBA 2020 to file such amended application documents. The board was satisfied that the amendments addressed its objections and prima facie appeared suitable to overcome the outstanding objections and admitted the request under Art. 13(2) RPBA 2020. The board held that such a situation could not be considered to constitute truly "exceptional circumstances" as required by Art. 13(2) RPBA 2020, at least according to its plain wording. After all, such conduct of the proceedings could even be considered as perfectly normal in ex-parte appeal proceedings. Nevertheless, the board was convinced that the procedural situation in the case in hand was covered by the legislative intent underlying the structure of Art. 12 and 13 RPBA 2020, and that the request was admissible. The board pointed out that since some of the objections addressed by the request at issue were not new, it could have come to the conclusion that the amendments were not admissible under Art. 13(2) RPBA 2020. On the other hand, there was a further procedural aspect that strongly supported the admittance of the request. The board noted that Art. 12 and 13 RPBA 2020 made no formal distinction between inter- partes and ex-parte cases. However, in the board's view, these provisions mainly served to prevent the raising of issues that could not be expected to be treated by other parties or the board within the foreseeable extent of the appeal proceedings, and in particular in view of the expected decision at the end of the oral proceedings (Art. 15(6) RPBA 2020). In the case in hand, the board was satisfied that the amendments in fact did not raise new issues for the board. They were therefore not detrimental to procedural economy, and there was also no other party whose interest could be jeopardised by such late amendments (see also T 1294/16). The board also saw no reason to depart from the settled practice of adapting the description only after the establishment of an allowable claim set. With regard to the appellant's duty to provide an explanation for the late filing of any amendments, the board observed that, in view of the totality of the circumstances of the present case, in particular in view of the fact that the amendments were filed following the express invitation from the board, requiring such an explanation from the appellant would be clearly counter-intuitive. The board was well aware for which purpose the amendments were filed and why they were filed at that stage. Thus no detailed arguments and reasons were required from the appellant in the present case.