a) Overview 

Article 13(2) RPBA implements the third level of the convergent approach applicable in appeal proceedings. Art. 13(2) RPBA imposes the most stringent limitations on a party wishing to amend its appeal case at an advanced stage of the proceedings, namely after expiry of a period set by the board of appeal in a communication under R. 100(2) EPC or, where no such communication is issued, after notification of the communication under Art. 15(1) RPBA (see document CA/3/19, section VI, explanatory remarks on Art. 13(2) RPBA, published in Supplementary publication 2, OJ 2020, 60, as well as OJ 2023, A103 on the latest amendment of Art. 13(2) RPBA).

In the version of Art. 13(2) RPBA which entered into force on 1 January 2020 the third level was triggered, in cases where no R. 100(2) EPC communication had been sent, by notification of the summons; this is reflected in part of the case law presented in this chapter. However, in order to avoid that the third level of the convergent approach is triggered by an early summons, as from 1 January 2024 (see Art. 2 of the decision of the Administrative Council of 13 December 2023, OJ 2023, A103), it is for all pending appeal proceedings the notification of the communication under Art. 15(1) RPBA, rather than the summons, which triggers the third level.

Article 13(2) RPBA provides that any amendment to a party's appeal case made at this stage of proceedings will, in principle, not be taken into account unless there are exceptional circumstances, which have been justified with cogent reasons by the party concerned.

In numerous decisions the boards have emphasised the party needs to set out compelling reasons why the circumstances are exceptional, in the absence of which the submissions concerned are not admitted (see e.g. T 1107/16, T 2486/16; see however the exception stated in T 1294/16). See also chapter V.A.4.5.1c) below. Furthermore, Art. 13(1) RPBA – including the duties to provide justification it lays down – also applies to the third level of the convergent approach (see e.g. T 2360/17).

Applying Art. 13(2) RPBA, the boards have consistently refused at this advanced stage of the proceedings to admit new submissions that should have been made earlier and that were considered detrimental to procedural economy or the rights of the other parties (see in particular the decisions cited in chapters V.A.4.5.4f), V.A.4.5.4g), V.A.4.5.4h), V.A.4.5.4i), V.A.4.5.4m) and V.A.4.5.4q)).

However, in cases in which the unjustified late submission ran contrary to neither the principle of procedural economy nor the legitimate interests of a party to the proceedings, the boards have come to different conclusions in their interpretation of Art. 13(2) RPBA.

In some of their decisions, the boards have considered that there needs to be a causal link between the "exceptional circumstances" and the time of filing in the proceedings (e.g. T 2463/16, T 2486/16), or that the "exceptional circumstances" need to justify the filing of new submissions at this advanced stage of the proceedings (e.g. T 1904/16, T 482/19, T 1590/19, T 2795/19). This interpretation of Art. 13(2) RPBA is based on, among other things, the parties' duty to facilitate due and swift conduct of the proceedings (T 2843/19) and on the aim of ensuring fair proceedings for all parties (T 1904/16).

In many other decisions, however, the boards have interpreted "exceptional circumstances justified with cogent reasons" in a broader sense. In T 2920/18 the board pointed out in this context that it was clear from the explanatory remarks that the legislator had had the intention to give the boards discretionary power (Supplementary publication 1, OJ 2020, Annex 2, 221). In T 339/19 the board explained that, in each case, it was incumbent on the deciding board to balance the right to be heard with the public interest in doing justice in good time. In the same way, numerous decisions have considered "exceptional circumstances" to be circumstances in which admission did negatively impact neither the procedural rights of another party (or of the other parties in inter partes proceedings) nor procedural economy (see, for example, T 1294/16, T 101/18, T 1290/18, T 1598/18, T 2920/18, T 339/19 and T 2465/19). For further details see chapter V.A.4.5.4k) below. See also V.A.4.5.5b) to V.A.4.5.5 e).

On the various related interpretations of "exceptional", see also chapter V.A.4.5.1e). On the meaning of "in principle" in Art. 13(2) RPBA, see chapter V.A.4.5.1f).

These different interpretations of "exceptional circumstances justified with cogent reasons" within the meaning of Art. 13(2) RPBA also influence whether admissibility under Art. 13(2) RPBA is examined in one or two steps. See chapter V.A.4.5.1g) below.

As regards the applicable criteria for exercising discretion, there seems to be consensus that at the third level of the convergent approach the boards of appeal are free to apply the criteria set out in Art. 13(1) RPBA when exercising their discretion under Art. 13(2) RPBA in deciding whether to allow an amendment at this stage in the proceedings (see, for example, T 989/15, T 584/17, T 954/17, T 752/16, T 764/16, T 709/16, T 995/18, T 1780/20; see also T 1609/16 and T 1421/20, which apply these criteria without citing Art. 13(1) RPBA). In T 2429/17 the board held that at the third level of the convergent approach it could also use criteria that applied to the first level, i.e. the criteria set out in Art. 12(4) to (6) RPBA. See also chapters V.A.4.5.4 and V.A.4.5.5, which provide a more detailed description of the case law on admitting new requests or new facts, objections, arguments or evidence, arranged by specific procedural situation or topic.