4.1.2 Primary object of appeal proceedings and the convergent approach to amendments made to party's case

In line with the principle set out in decisions G 9/91 (OJ 1993, 408, point 18 of the Reasons) and G 10/93 (OJ 1995, 172, point 4 of the Reasons; see also e.g. T 2194/14, T 1102/15, T 343/16 and T 632/16), the RPBA which entered into force in 2020 highlight in their new Art. 12(2) RPBA that the primary object of the appeal proceedings is to review the decision under appeal in a judicial manner. Numerous decisions have referred to this principle in their reasoning when applying the provisions of the RPBA governing new submissions on appeal (see e.g. J 3/20, T 2214/15, T 786/16, T 256/17, T 2778/17, T 1422/17, T 1456/20, T 1963/20).

For ex parte proceedings, T 913/20 recalled however that, following the principles set out in G 10/93 (OJ 1995, 172), boards have the power to examine whether the application or the invention to which it relates meets the requirements of the EPC, including requirements, objections or evidence which the examining division did not take into consideration.

For opposition proceedings, the board in T 1117/16, referring to the case law on the RPBA 2007 (see CLB, 10th edn., 2022, V.A.5.2.1), reiterated that in view of the primary goal of appeal proceedings, which was now enshrined in Art. 12(2) RPBA, the factual and legal framework of the opposition proceedings was largely decisive for the subsequent appeal proceedings. Thus, parties are subject to certain restrictions during the proceedings, resulting from the principle of fairness to other parties in inter partes cases and from the requirements of due process more generally. In particular, parties in inter partes cases also have a duty to facilitate the due and swift conduct of proceedings. See also T 2482/22, in which the board rejected the argument that concerns over the validity of the patents issued by the EPO had to trump any other considerations.

One of the consequences of the boards' function being above all to review the appealed decision is indeed that, as the appeal proceedings progress, the possibilities for parties to amend their case become increasingly limited (see e.g. T 1370/15, T 2778/17 and CA/3/19, section V.B.c), point 48). This "convergent approach" (referred to in numerous decisions interpreting the relevant provisions of the revised RPBA; see. e.g. T 2214/15, T 2227/15, T 2279/16, T 2778/17) consists of three levels, regulated in Art. 12(4) RPBA, Art. 13(1) RPBA and Art. 13(2) RPBA. Which of these provisions apply depends on the point in the proceedings at which a party changes its case:

– at the outset of the appeal proceedings – first level of convergent approach – only Art. 12(4) RPBA;

– after the party has filed its grounds of appeal or its reply – second level of convergent approach – Art. 13(1) RPBA, which contains a reference to Art. 12(4) to (6) RPBA;

– after the period set in a communication under R. 100(2) EPC has expired or a communication under Art. 15(1) RPBA (as of 1 January 2024, previously: summons to oral proceedings) has been notified – third level of convergent approach – Art. 13(2) RPBA (and the criteria of Art. 13(1) RPBA, see below).

Indeed, these provisions are, where their various individual requirements are met, cumulatively applicable.

The requirements of the first level of the convergent approach – i.e. those set out in Art. 12(4) to (6) RPBA – apply throughout the appeal proceedings. By way of express reference to Art. 12(4) to (6) RPBA, it is clarified in Art. 13(1) RPBA that the criteria set out in those provisions apply mutatis mutandis to any submissions made after a party has filed its grounds of appeal or its reply.

As regards Art. 13(1) RPBA, numerous decisions have confirmed that the criteria of this provision may also be applied at the third level of the convergent approach (see e.g. T 584/17, which gives a detailed explanation based on the travaux préparatoires in document CA/3/19, section VI, explanatory remarks on Art. 13(2) RPBA; see also T 2227/15, T 172/17 and T 574/17). This in turn provides the possibility of relying on the criteria set out in Art. 12(4) to (6) RPBA, which are referred to in Art. 13(1) RPBA (T 487/20; see also T 2486/16, T 2429/17 and T 1058/20).

All decisions pertaining to the requirements of the first level of the convergent approach set out in Art. 12(4) to (6) RPBA are reported in chapter V.A.4.3 "First level of the convergent approach – submissions in the grounds of appeal and the reply – Article 12(3) to (6) RPBA", irrespective of the stage of the proceedings at which the submissions concerned were filed.

For more details on the application of the criteria of Art. 13(1) RPBA at the third level, see chapters V.A.4.5.1a), V.A.4.5.1g) and V.A.4.5.4e)".

The provisions of Art. 12(4), 13(1) and 13(2) RPBA only apply to cases in which a party has amended its case (i.e. as compared to the one it presented at first instance as far as Art. 12(4) RPBA is concerned or its appeal case as far as Art. 13(1) RPBA and Art. 13(2) RPBA are concerned). Decisions on this preliminary issue of whether new submissions are an amendment are summarised in chapter V.A.4.2 "Amendment to a party's case".

Concerning late-filed third-party observations in appeal proceedings, see chapter III.N.3.2 and III.N.4.4.

In R 4/22, the Enlarged Board found that the case law of the ECtHR provides no grounds for questioning restrictive provisions such as the convergent approach in principle, or for generally denying that the application of such provisions is compatible with Art. 6 ECHR.