4.4.1 Principles

Art. 13(1) RPBA implements the second level of the convergent approach applicable in appeal proceedings. It defines the conditions under which a party may amend its appeal case after the initial stage of the proceedings (in particular with the appellant's rejoinder).

The onus is on the party to explain and justify any amendment to its case (see CA/3/19, section V.B.a), point 49; see also chapter V.A.4.4.4 below). That includes providing reasons for not submitting the amendment at an earlier stage in the appeal proceedings (Art. 13(1), third sentence, RPBA, underlined e.g. in T 136/16 and T 2688/16). The boards have repeatedly emphasised the duty on the parties to file all facts, evidence, arguments and requests as early and as completely as possible (see e.g. T 1014/17 and T 1203/16).

The admittance of the amendment is subject to the board's discretion (see CA/3/19, section VI, explanatory remarks on Art. 13(1) RPBA, Supplementary publication 2, OJ 2020, 59). Pursuant to Art. 13(1) RPBA, the boards exercise their discretion in view of inter alia, the current state of proceedings, the suitability of the amendment to resolve the issues which were admissibly raised by another party or raised by the board, whether the amendment is detrimental to procedural economy, and in case of an amendment to a patent application or patent, whether the party has demonstrated that any such amendment prima facie overcomes the issues raised and does not give rise to new objections.

As confirmed by the board in T 1217/17 and T 2101/16, the list of criteria for applying that discretion given in Art. 13(1) RPBA is non-exhaustive (see also. T 1213/19 date: 2022-09-23, citing CA/3/19, section VI, Explanatory remarks on Art. 13(1), fourth sentence, RPBA, Supplementary publication 2 to OJ 2020). Moreover, Art. 13(1), second sentence, RPBA stipulates the application mutatis mutandis of Art. 12(4) to (6) RPBA, which includes the criteria in Art. 12(4), fifth sentence, RPBA (inter alia, complexity of the amendment, see e.g. T 32/16, T 310/18). According to T 1213/19 date: 2022-09-23 (citing T 731/16, T 2796/17 and T 310/18), it is established case law that, besides the criteria enumerated in Art. 13(1) RPBA, further decisive criteria for admitting late-filed documents can be their prima facie relevance and whether they introduce any complex matter. Prima facie relevance of the submissions however does not always prevail over the fact that the respondent could and should have submitted them (in a substantiated manner) when initially formulating its appeal case (see e.g. T 1333/20). In T 154/16 the board considered inter alia the potential for the other party to be taken by surprise and the principle of procedural fairness. The latter was also considered in T 1014/17.

In several decisions the boards have admitted new requests at this stage because they were considered filed in good time and prima facie allowable (see e.g. T 851/18 date: 2020-01-10, T 131/18) or at least prima facie suitable to overcome the objections discussed in the appealed decision (see e.g. T 2044/20). Some requests that should have been filed earlier were nevertheless admitted, e.g. because they were prima facie allowable and not detrimental to procedural economy (see e.g. T 1597/16).The boards have repeatedly highlighted that the criteria set out in Art. 13(1) RPBA (in its current version) reflect established case law developed through the stringent application of the requirements of Art. 13(1) RPBA 2007 (see e.g. T 634/16, T 32/16, T 1480/16, T 1597/16, T 658/17).

As mentioned in chapter V.A.4.1.2 "Primary object of appeal proceedings and the convergent approach to amendments made to party's case" above, the requirements of the second level of the convergent approach (Art. 13(1) RPBA) also play a role at the third level. As envisaged in the explanatory remarks on Art. 13(2) RPBA and confirmed by case law (e.g. T 989/15, T 584/17, T 954/17, T 1869/18), the boards may in the exercise of their discretion under Art. 13(2) RPBA also rely on criteria applicable at the second level of the convergent approach. It is noted that decisions applying the criteria of Art. 13(1) RPBA are therefore presented not only in this chapter but also in chapters V.A.4.5.4e), V.A.4.5.5b) and V.A.4.5.5j) below.