a) Principles 

Art. 13(2) RPBA 2020 provides that, for new submissions at the third level of the convergent approach to be taken into account, the party concerned must justify with cogent reasons that there are exceptional circumstances (see e.g. T 1107/16, T 2486/16, T 482/19). In T 552/16, for instance, the board did not admit a late filed document, because exceptional circumstances for its late filing within the meaning of Art. 13(2) RPBA 2020 had neither been presented nor were they evident from the case (see also T 48/17). The board in T 1294/16, however, found that there was no need for a party to put forward cogent reasons where the circumstances were beyond that party's control and the board itself, bearing in mind the purpose of the convergent approach, considered ex officio the circumstances to be exceptional (see also T 1790/17).

Exceptional circumstances within the meaning of Art. 13(2) RPBA 2020 generally concern new or unforeseen developments in the appeal proceedings themselves, such as new objections raised by the board or another party (T 2329/15, see also T 1702/18), whereas the normal course of events does not justify late submissions (see e.g. T 1870/15, T 2214/15, T 2539/16).

Exceptional circumstances have been acknowledged where, for instance, the filing of new requests constituted a legitimate and timely response to a new objection raised by the board (in its communication under Art. 15(1) RPBA 2020, see e.g. T 1255/18, or at the oral proceedings, see e.g. T 1561/15). In this context, a "new objection" means one not covered by those previously raised by the board or a party (T 2610/16, T 42/17).

In contrast, where an objection had already been raised by the first-instance division or a party, the board's raising of these objections (e.g. T 1187/16; even where this involved a change in the board's opinion, e.g. T 752/16, T 995/18), or objections merely developing the objections originally raised or stating them more precisely (e.g. T 2539/16, T 1080/15) or objections to unsuccessful attempts at overcoming previously identified issues (T 2214/15) been seen as an ordinary development in the appeal proceedings which could not justify the filing of new requests.

Documents and new lines of attack filed in reply to a preliminary opinion of the board which was based exclusively on earlier submissions made by the parties have likewise not been admitted (T 908/19).

Several decisions deal with the question of whether there has to be a causal link between the exceptional circumstances and the late filing of the new submissions (see chapter V.A.4.5.4b)). In T 2486/16, for instance, the board required that the party should explain why the circumstances had the direct result of preventing it from filing its requests at an earlier stage.

In some decisions, the boards have read "exceptional circumstances" more broadly. In T 713/14, for instance, the board, when assessing whether there were exceptional circumstances, took the entire background to the case into account (including the fact that the clarity objection had been held to be unjustified by the opposition division, that the case had been pending since long before entry into force of the RPBA 2020, and the disruptive consequences of the COVID-19 pandemic), as well as the fact that the amendments limited the case to embodiments that were explicitly present in the claims as granted and that the appellant had had ample opportunity to object to all embodiments claimed. In T 545/18 the board acknowledged that there were exceptional circumstances within the meaning of Art. 13(2) RPBA 2020 in the case in hand, considering the great importance of the right invoked by the appellant (right to be heard) and the facts that no other party was affected by the late filing and that the board was in a position to take a decision without needing to postpone oral proceedings.

In T 1294/16 the board noted that the example of exceptional circumstances provided in the explanatory remarks in CA/3/19 (namely a new objection raised by the board) suggested that exceptionality was not necessarily linked to events being exceptional in the sense of deviating from the expected, but could also be caused by considerations related to the legal framework, notably the principles underlying the Rules of Procedure. Art. 12 and 13 RPBA 2020 implemented the "convergent approach", the major motivation for which was the procedural economy of the appeal proceedings. The board deduced from this that if admittance of a (late-filed) submission was not detrimental to procedural economy, it was appropriate to accept that there were "exceptional circumstances" within the meaning of Art. 13(2) RPBA 2020, provided that this did not adversely affect the other party. In the case in hand, the board admitted the three late-filed auxiliary requests, since they were filed in ex parte proceedings and the board was able to deal with the amendment without undue delay during the oral proceedings. See also e.g. T 195/20 and T 1598/18 (by the same board), as well as T 1857/19 (considering that the fact that an amendment significantly enhanced procedural economy by clearly overcoming existing objections without giving rise to any new issues could be seen as an exceptional circumstance).