p) Submissions concerning interpretation of the law 

In T 2988/18 the board observed that there was no definition of the term "argument" in the RPBA. In G 4/92 (OJ 1994, 149) the Enlarged Board had contrasted arguments with grounds or evidence and suggested that arguments "are reasons based on the facts and evidence which have already been put forward". In the board's view, this left open the question whether the type of argument made by the appellant, namely one which concerned the Enlarged Board's interpretation of Art. 123(2) EPC in G 1/93 (OJ 1994, 541), also fell under the ambit of Art. 13(2) RPBA. The board explained that arguments pertaining to interpretation of the law were generally accepted at any stage of the proceedings (with reference being made to sources of German and English law). This had been recognised in the explanatory remarks to the RPBA (in its version which entered into force on 1 January 2020), according to which submissions of a party which concerned the interpretation of the law were not an amendment (Supplementary publication 2, OJ 2020, 56). The board concurred with this view. It further noted that the appellant's argument was essentially that the principle set out in Headnote 2 of G 1/93 applied to the present case. This was precisely what was meant by the passage of the explanatory remarks to the RPBA referred to above, because an argument about the interpretation of the law would naturally concern how that interpretation applied to the facts of the case before the board. For an example where the appellant’s submissions related to the interpretation of Art. 56 EPC, specifically to case law on the application of the problem-solution approach, see T 325/16.

In T 482/18 the board endorsed the view taken in T 1914/12 that the boards did not have any discretion when it came to admitting late-filed arguments based on facts already at issue in the proceedings, on the ground that Art. 114(2) EPC 1973 (identical to Art. 114(2) EPC) did not provide a basis for rejecting arguments. Nevertheless, it interpreted "argument" narrowly, treating the term as equivalent to submissions concerning interpretation of the law.

In J 14/19 the Legal Board, noting that late-filed submissions with factual elements could be disregarded under Art. 114(2) EPC, held that "arguments" in Art. 12(2) RPBA had to be interpreted in such a way that the meaning arrived at was in line with Art. 114(2) EPC. Submissions of a party as to how the law should be interpreted did not have a factual dimension. Such submissions concerning only interpretation of the law were therefore not covered by the term "arguments" in Art. 12(2) RPBA, which instead referred to submissions with both factual and legal elements, of the kind as a rule made in relation to patentability issues. The Legal Board thus concluded that submissions concerning only interpretation of the law did not result in an amendment within the meaning of Art. 12(4) RPBA. Ultimately, this conclusion was confirmed by the explanatory remarks on Art. 12(4) RPBA (CA/3/19, point 54 and related part of table in section VI, explanatory notes on Art. 12(4) RPBA), and it applied by analogy to Art. 13(1) and (2) RPBA too.

In T 1303/18 the board did not admit into the proceedings the appellant's defence (raised for the first time after the filing of the grounds of appeal and the replies) relying on entitlement to partial priority, pursuant to Art. 13(1) RPBA and Art. 12(2), (4) RPBA 2007. The board held that the new defence by which a right to partial priority was invoked was not merely a presentation of a new argument pertaining to the interpretation of law but comprised a new allegation of fact. Indeed, it would have involved a new factual assessment of the subject-matter of claim 1 as granted and of priority application D49.

In T 116/18 date: 2023-07-28 (28 July 2023) the board decided at the oral proceedings not to admit the respondent's (patent proprietor's) submission that the facts underlying T 873/21 were analogous to the facts under consideration in the case in hand, so that, based on that decision, the effect demonstrated in D21 could be relied on. In the board's view, a distinction had to be made between an interpretation of the law based on a previous decision by the boards of appeal, on the one hand, and a reference to the specific factual and legal assessments of this previous decision and the allegation that this factual situation was the same as in the case pending before the board, on the other hand. As regards the interpretation of the law, the board explained that the boards had to examine the relevant case law ex officio. If there was a contradiction between the interpretation of the EPC the board intended to follow in the case pending before it and the interpretation adopted in the earlier decision, the board had to explain the reason for its deviation. As regards the second type of submissions, the board underlined that such a submission contained both a statement of fact and its legal qualification. In order for the board to deal with such a submission, it had to examine the factual situation on which the earlier decision was based and assess whether it was similar to the one underlying the pending case. For these reasons, such a submission included a new allegation of fact and thus constituted an amendment to the respondent's appeal case.