5.1.5 Discretion to admit or not admit amendments
Rule 116(1) EPC establishes that when issuing the summons, a final date for making written submissions in preparation for the oral proceedings shall be fixed. R. 132 EPC does not apply in this context, meaning the usual provisions for extending time limits are not available for these submissions. New facts and evidence presented after that date need not be considered, unless admitted on the grounds that the subject of the proceedings has changed. R. 116(2) EPC imposes the same obligations on the applicant or patent proprietor when submitting new documents that meet the requirements of the EPC as R. 116(1) EPC imposes on the parties in submitting new facts and evidence. In T 382/97 the board explained that R. 57a EPC 1973 (R. 80 EPC) and R. 71a EPC 1973 (R. 116 EPC) together governed the procedural preconditions for amendments to a patent by its proprietor before the opposition division. R. 57a EPC 1973 created the legal basis for amendment, and R. 71a EPC 1973 governed the deadline for doing so. It noted that amendments not complying with a time limit set under R. 71a EPC 1973 might nevertheless be admissible, if there existed good reasons for their late submission.
In T 28/10 the board agreed with the view that the principle of free party disposition was restricted by the principle of focussed proceedings ("Konzentrationsgrundsatz", or the "principle of procedural concentration"). As far as amending sets of claims during opposition proceedings was concerned, this "principle of concentration" was enshrined in R. 116(2) EPC. Although this provision did not completely exclude subsequent amendment of a party’s case by imposing strict time limits for making certain submissions, it was left to the decision-making body’s discretion whether to consider such amendments.
The board in T 1067/08 also found that R. 116 EPC gave the opposition division the discretionary power to refuse new requests for amendments if amended claims were presented after the final date fixed under that provision. This applied in particular to requests which were presented for the first time during the oral proceedings (e.g. T 484/99, T 64/02). The board noted the purpose of this provision was in particular to prevent parties from seeking unjustified procedural advantages by abusive tactics in disregard of procedural economy. Therefore, any amendment had to be carried out in the most expedient manner, which had to be established by the opposition division taking into account the interests of all parties (see also T 382/97, T 1253/09), and the power to refuse late requests had to be exercised by considering all relevant factors which arose in a particular case, taking into account inter alia whether there were good reasons for the late filing, whether the other parties were taken by surprise and whether new issues were raised by the amendments made (see also chapter IV.C.5.1.7 "Principles for the exercise of discretion by the opposition division").
Likewise in T 688/16 the board held that Art. 114(2) EPC only provided a discretion to admit or not admit facts and evidence and that the discretion not to admit late-filed requests was conferred by R. 116(2) EPC. That discretion was conditional on a communication stating that grounds prejudiced the maintenance of the patent. In the case at issue, however, the opposition division had not issued any such negative communication but only one stating its provisional opinion that none of the grounds for opposition prejudiced maintenance of the patent as granted, and thus the board concluded the (non)-admittance of auxiliary request 3 was not at all within the discretion of the opposition division in the case in hand.
The board in T 1662/21 agreed with the position set out in T 688/16, adding that this did not mean that any amendment submitted must be admitted. The opposition division first needed to establish whether amendments were indeed intended to overcome the objections, and whether they did so in a way that was appropriate and proportionate to the circumstances. The division thus still had discretion, but had to exercise it differently from when deciding admission of amendments filed after the R. 116 EPC date that were not justified by a change of the subject of the proceedings.
In T 1332/21 the board stated that the discretion of the opposition division whether to admit amended claims during oral proceedings was apparent from R. 116(2) EPC referring to the last two sentences of R. 116(1) EPC that such amendments "need not be considered". For criteria for the use of this discretion, the board referred to the Guidelines, E‑III, 8.6 – March 2021 version (now in EPC Guidelines E‑VI, 2. – April 2025 version). For the principles for the use of this discretion, see also below chapter IV.C.5.1.7.