4.3.5 Incomplete case in grounds of appeal or reply – substantiation requirement – Article 12(3) and (5) RPBA
In T 503/20 the board held that it had discretion whether to admit passages of the reply to the opposition which had been referred to using their specific margin references, and this depended on the specific circumstances of the case in hand. These included whether the impugned decision had been discussed to a sufficient extent and, if the points at issue were irrelevant for this decision, whether it was clear enough from both parties' complete submissions which points were being pursued for what specific reasons and how these relate to the opposing party's case.
In ex parte case T 1421/20 requests were introduced and commented on in the statement of grounds of appeal, but no claims were filed, and so the board had discretion not to admit them under Art. 12(5) RPBA. The board took into account that the requests contained a feature which had previously been found to be unclear. Since none of the requests at issue met the requirement of clarity, the board exercised its discretion not to admit these requests.
For further cases in which the boards considered that the requirements of Art. 12(3) RPBA were not met and exercised their discretion under Art. 12(5) RPBA not to admit the part of the appeal submissions which did not meet these requirements, see e.g. T 2457/16, T 430/20, T 640/20, T 1421/20, T 557/21, T 1041/21.
In T 1220/21 the board explained that the purpose of Art. 12(3) RPBA was to ensure that the relevant submissions were present in the proceedings as early as possible to enable the board and the other party(ies) to start working on the case on the basis of the parties' complete submissions without being forced to speculate on their intentions. The extent to which a lack of or an incomplete substantiation runs counter to this objective was a factor that could be taken into account when exercising the discretion under Art. 12(5) RPBA (T 1659/20). This included addressing the question of whether the amendments and the chain of logic underlying the claim requests were self-explanatory (which was not the case here). See also T 658/22.