4.3.5 Incomplete case in grounds of appeal or reply – Article 12(3) RPBA 2020 in conjunction with Article 12(5) RPBA 2020
In accordance with the principles underlying the RPBA, the statement of grounds of appeal and any reply to it must contain the party's complete case (Art. 12(3) RPBA 2020, essentially the same as Art. 12(2) RPBA 2007). The purpose of this provision – in both its revised and former versions – is to ensure fair proceedings for all parties and to enable the board to start working on the case on the basis of each party's complete submissions (T 2610/16, referring to Case Law of the Boards of Appeal, 9th ed. 2019, V.A.4.12.5; see also T 1904/16, T 113/18 and T 319/18).
In T 1439/16 the board pointed out that it was the appellant who defined the extent of the appeal and that, according to Art. 12(3) RPBA 2020, the statement of grounds of appeal had to contain a party's complete case. It had been the choice of the appellant in the case in hand to make an objection of added subject-matter only to claim 1 and not to claim 8 in the statement setting out the grounds of appeal.
Likewise in T 1533/15, concerning a case where the appellant (patentee) filed, at a late stage of the appeal proceedings, auxiliary requests not containing a certain claim which had been objected to in the notice of opposition and by the opposition division, the board emphasised that it would have been for the appellant to present its complete case in the statement of grounds of appeal – including auxiliary requests not containing the claim at issue (Art. 12(3) RPBA 2020).
Under new Art. 12(5) RPBA 2020, a board has discretion not to admit any part of a submission on appeal which does not meet the requirements in Art. 12(3) RPBA 2020. In T 1421/20 und T 2457/16, for instance, the boards exercised this discretion under Art. 12(5) RPBA 2020 not to admit submissions that were not complete within the meaning of Art. 12(3) RPBA 2020. Fleshing out an incomplete case at a later stage can amount to an amendment within the meaning of Art. 13 RPBA 2020 (as in e.g. J 3/20, T 2227/15, T 326/16, T 1439/16, T 2796/17); see also V.A.4.2.2k) "Fleshing out objections not adequately substantiated in the grounds of appeal or reply"). In some decisions, the boards also took the view that submissions could and should have already been filed at first instance and refused to admit them under Art. 12(6), second sentence, RPBA 2020 (see e.g. J 3/20) or Art. 12(4) RPBA 2007 (see e.g. T 925/16). Some decisions cited Art. 12(3) RPBA 2020 alone as the basis for refusing to admit submissions (see e.g. T 565/16).