h) Belated substantiation of requests 

In numerous decisions, boards have pointed out that the later substantiation of initially unsubstantiated requests is to be considered as an amendment to the party's appeal case (e.g. T 319/18, T 1220/21, T 321/21, summarised below, and T 1128/21, T 2013/21). There are, however, different approaches to the treatment of the initial unsubstantiated requests, one being that they are considered not effective (see T 319/18, summarised below, and e.g. T 1732/10, T 2288/12, T 1784/14, T 2393/18) and the other that they have been validly filed but are admitted to the appeal proceedings only at the board's discretion (e.g. T 1220/21, summarised below, and T 1128/21). See also chapter V.A.4.3.5b) (v).

In T 319/18 the board recalled that Art. 12(3) RPBA, analogously to Art. 12(2) RPBA 2007, required that the parties to appeal proceedings set out their complete case in their initial submissions. The board held, with reference to T 933/09 and T 1533/13, that when filing of a new set of claims, it was necessary to explicitly state why the amendments overcame the objections on which the decision under appeal was based and/or which were raised by the opponent. Unless the purpose of the amendments was self-explanatory, if reasons explaining why the new claims overcome the outstanding objections were filed after the statement of grounds of appeal or the reply, these reasons constituted an amendment to the party's appeal case. In the case in hand, the board held that the requests became effective only at the date on which they were substantiated. They were not admitted (Art. 13(2) RPBA). See also T 750/18. For an example where an amendment was held to be self-explanatory, see T 2964/18.

In T 1220/21, however, the board held, in view of Art. 12(3) and (5) RPBA, that a lack of or insufficient substantiation of an amended request may lead to its non-admittance, but that this did not imply that the request had not been validly filed. The board considered the late substantiation of the requests at issue as an amendment to the party's appeal case and decided not to admit it under Art. 13(2) RPBA. Moreover, it exercised its discretion under Art. 12(5) RPBA not to admit the unsubstantiated requests. Along similar lines, in T 1128/21 the board explained that a distinction had to be made between the filing of an amended claim request and the question of whether the request had been sufficiently substantiated. That followed systematically from Art. 12(3) and (5) RPBA, according to which a request, even if not sufficiently substantiated, had to be assessed by the board with respect to its admittance. Such an assessment of the request and the possibility of admitting it despite insufficient substantiation presupposed that the request was pending, i.e. had been validly filed.

In T 321/21 the board discussed the two approaches to dealing with unsubstantiated requests and objections (i.e. whether unsubstantiated submissions are not validly filed or are effective but subject to the board's discretion). It pointed out that a main difference between the two approaches appeared to be whether or not a board had to take a formal admittance decision on a claim request or objection which it considered unsubstantiated. The board also explained that the principle that a party must contribute to the conduct of the proceedings by substantiating its own requests and objections in a minimum way is a general procedural principle underlying the EPC (see T 1776/18). In Art. 12(3), second sentence, RPBA this principle was specifically applied to the statement of grounds of appeal and the reply.

On belated substantiation of an objection or defence, see chapters V.A.4.2.3m) and V.A.4.2.3o) below.

On the substantiation requirement and especially the question whether self-explanatory requests meet the requirements of Art. 12(3) RPBA, see chapter V.A.4.3.5b) and V.A.4.4.4c) (ii).

On case law on unsubstantiated requests under Art. 12(2) RPBA 2007, see CLB, 10^th edn. 2022, V.A.5.12.6.