In T 2703/16 claim 1 of the main request and auxiliary request 1, filed for the first time less than two weeks before the oral proceedings, differed from claim 1 of the claim set underlying the appealed decision and of the claim set filed with the statement of grounds of appeal in that certain limiting features had been removed, with the result that the claimed method had significantly changed. According to the board, by deleting the limitations which had been introduced during the examination proceedings and maintained until its conclusion, the appellant had essentially reset the case and thereby let the appealed decision become irrelevant. Thus, a fresh case had been created. The board held that if it were to admit the new requests, it would be compelled to either give a first ruling on a significantly changed subject-matter, which would run counter to the primary purpose of second-instance proceedings, or remit the case to the department of first instance, which would clearly be contrary to procedural economy. In addition, the board did not see the COVID-19 pandemic as an exceptional circumstance in the case in hand. It also considered the prima facie allowability of claim 1 of the new requests, but saw issues under Art. 84 and 83 EPC. In view of the above, the board, exercising its discretion under Art. 13(2) RPBA 2020, decided not to admit the new requests into the appeal proceedings.
- T 1869/18
While objections raised by the Board for the first time in a communication under Article 15(1) RPBA 2020 may be considered to give rise to exceptional circumstances within the meaning of Article 13(2) RPBA 2020, and may possibly justify the filing of amendments which specifically respond to the new objections, this does not open the door to additional amendments which are unrelated to the new objections, and for which no exceptional circumstances exist (Reasons, point 3.10).