Amended Articles 13(2), 15(1) and 15(9)(b) of the Rules of Procedure of the Boards of Appeal (RPBA) enter into force on 1 January 2024

Today, the Administrative Council approved amendments to Articles 13(2), 15(1) and 15(9)(b) of the Rules of Procedure of the Boards of Appeal (RPBA) which are intended to further enhance the timeliness of appeal proceedings while ensuring that the rights of the parties are duly safeguarded.

The amendments had been adopted by the Boards of Appeal Committee (BOAC) upon proposal by the President of the Boards of Appeal. In this proposal, the President of the Boards of Appeal had also taken into account users' valuable input that was among others provided in an online user consultation.

The amendments of the Rules of Procedure of the Boards of Appeal are related to the ambitious objective of the Boards of Appeal to improve timeliness and to eliminate the stock of backlog cases so that cases can ultimately be dealt with as soon as they come in.

The amended provisions enter into force on 1 January 2024 and apply to all appeal proceedings pending on or after that date.

Articles 13(2), 15(1) and 15(9)(b) RPBA are amended as follows:

Article 13(2):

"Any amendment to a party's appeal case made after the expiry of a period specified by the Board in a communication under Rule 100, paragraph 2, EPC or, where such a communication is not issued, after notification of a summons to oral proceedings communication under Article 15, paragraph 1, shall, in principle, not be taken into account unless there are exceptional circumstances, which have been justified with cogent reasons by the party concerned."

Article 15(1):

"Without prejudice to Rule 115, paragraph 1, EPC, the Board shall, if oral proceedings are to take place, endeavour to give at least four months' notice of the summons. In cases where there is more than one party, the Board shall endeavour to issue the summons no earlier than two months after receipt of the written reply or replies referred to in Article 12, paragraph 1(c). A single date is fixed for the oral proceedings. In order to help concentration on essentials during the oral proceedings, the Board shall issue a communication drawing attention to matters that seem to be of particular significance for the decision to be taken. The Board may also provide a preliminary opinion. The Board shall endeavour to issue the communication at least four months in advance of the date of the oral proceedings. In cases where there is more than one party, the Board shall issue the communication no earlier than one month after receipt of the written reply or replies referred to in Article 12, paragraph 1(c)."

Article 15(9)(b):

"When a case is ready for decision at the conclusion of the oral proceedings but the Chair does not announce the decision on the appeal orally in accordance with paragraph 6, the Chair shall indicate the date on which the decision on the appeal is to be despatched, which shall not be later than three months after the closure of the oral proceedings. If the Board is unable to despatch the decision on the appeal by that date, it shall inform the parties and the President of the Boards of Appeal of a new date or, in exceptional circumstances, shall issue a communication specifying the further procedural steps that will be taken."

The most important amendment of the Rules of Procedure of the Boards of Appeal concerns Article 15(1) RPBA. It enhances the timeliness of the appeal proceedings by enabling the Board to summon to oral proceedings at an earlier stage of the proceedings. Until now, in cases where there is more than one party, the Board had to endeavour to summon no earlier than two months after the respondent’s reply to the statement of grounds of appeal. This constraint will not apply to the summons anymore. Early summoning is also beneficial for parties and representatives, who can immediately make the necessary arrangements for the oral proceedings.

To avoid that the third level of the convergent approach is triggered by an (early) summons, a related amendment to Article 13(2) RPBA provides that – instead of the summons – it will be the notification of the Board’s communication under Article 15(1) RPBA that triggers the third and strictest level of the convergent approach for admitting amendments to a party's appeal case. Amended Article 13(2) RPBA constitutes a further improvement for parties as they benefit from the less strict approach under Article 13(1) RPBA until a later stage of the proceedings if the communication under Article 15(1) RPBA is notified later than the summons to oral proceedings. In cases where there is more than one party, Article 15(1) RPBA also ensures that the third level of the convergent approach will be triggered by the Board’s communication under Article 15(1) RPBA no earlier than at least one month after the respondent’s reply to the statement of grounds of appeal.

Article 15(9)(b) RPBA was amended to be harmonised with Article 15(9)(a) RPBA.

An initially envisaged amendment to reduce the default period for submitting the response to the reply under Article 12(1)(c) RPBA from currently 4 months to 2 months will not be pursued for the time being. Such an amendment will be reconsidered once experience with the new timeliness objective for the Boards of Appeal (settling of 90% of cases within 24 months by the end of 2025) is evaluated.