4.5.1 General principles
The question whether the term "exceptional circumstances" should be interpreted such that these circumstances must be the cause of or, in other words, justify the time of filing, has been answered in the case law in different ways.
(i) Decisions according to which a causal link is required
In T 2486/16 the board emphasised that a party, when providing its "cogent reasons", should not only identify the circumstances invoked and explain why they were to be regarded as exceptional but also explain why these circumstances had the direct result of preventing it from filing its requests at an earlier stage (see also T 1707/17 by the same board, which referred to T 1033/10). In the case in hand, the appellant, which had filed the new request at issue and was successor in title of the original applicant, had invoked receivership and a transfer of ownership as exceptional circumstances. However, in the view of the board, even if these difficulties experienced by the original applicant were considered to constitute exceptional circumstances within the meaning of Art. 13(2) RPBA, the requirement of establishing a causal link had not been fulfilled. The new appellant had submitted no evidence that the original applicant had been experiencing any such difficulties at the date of filing the statement of grounds of appeal. See also T 2463/16 and T 1433/18.
Similarly, in T 2795/19 the board held that Art. 13(2) RPBA required the party not only to explain why the case involved exceptional circumstances but also to explain why its amendment, in terms of both content and timing, was a justified response to these circumstances. In particular, where a party sought to amend its case at a very late stage in the proceedings, the cogent reasons referred to in Art. 13(2) RPBA should include reasons why it had not been possible to file such an amendment earlier (citing T 1707/17; see also T 755/16 and T 482/19). In T 1190/17 the board held that its inclusion of a new argument in the chain of arguments leading to the finding of lack of inventive step did not open the door to the introduction of amendments whose content would have gone well beyond that needed to refute the new argument (see also T 1869/18).
In T 2843/19 the board emphasised the duty of parties to facilitate due and swift conduct of the proceedings and did not admit the appellant's new objection, since no exceptional circumstance had been presented that could have justified its late submission so close to the scheduled date for oral proceedings.
In T 2482/22 the board rejected the argument that concerns regarding the validity of the patents issued by the EPO had to trump any other considerations. The legislator had seen this differently, as evident from Art. 12(2) RPBA (as adopted by decision of the Administrative Council of 26 June 2019), according to which the primary object of the appeal proceedings is to review the decision under appeal and a party should direct their appeal case at the requests, facts, objections, arguments and evidence on which the decision under appeal is based. As a consequence, the possibility for a party to change its case or add to it was very limited, increasingly so as the appeal procedure progressed. The board noted that Art. 12(4) and 13(1) RPBA still included criteria that could be seen as relating to the merit or relevance of any such new material albeit subject to a reasoned justification. However, such criteria are entirely absent from the wording Art. 13(2) RPBA. Thus, merit or relevance was not somehow subsumed in the sole criterion of "exceptional circumstances", which could only relate to circumstances that arise from the way the proceedings have developed, i.e. the procedure itself and not its subject. In the same vein, see the earlier case T 1590/19.
(ii) Decisions according to which no causal link is required
Other decisions have not required such a causal link between exceptional circumstances and late filing. Rather, these held that, even if late filing was not justified, other aspects could be taken into account when determining whether there were exceptional circumstances. In T 339/19, for instance, 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. Thus, numerous decisions have considered "exceptional circumstances" to be circumstances in which admission did not negatively impact either the procedural rights of another party (or other parties in inter partes proceedings) or 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, some of which are summarised below, as well as the other decisions cited therein). Similarly T 713/14, T 545/18 and T 1686/21 (in which the large number of different objections was also taken into account).
In T 1294/16 the board noted that the major motivation for the convergent approach was the procedural economy of the appeal proceedings. The board deduced from this that if admittance of a (late-filed) submission was not detrimental to procedural economy, it was appropriate to accept that there were "exceptional circumstances" within the meaning of Art. 13(2) RPBA , provided that this did not adversely affect the other party. In the ex parte case in hand, the board admitted the three late-filed auxiliary requests, since the amendment could be dealt with during the oral proceedings. This decision was followed e.g. in T 1290/18, T 339/19 and T 2465/19 (the latter specifically addressing the situation in ex parte cases). See also T 424/21 which points out that prohibiting the deletion of dependent claims at a late stage might lead to a huge number of auxiliary requests at an early stage and thus not be in the interest of procedural economy.
In T 339/19 the board agreed that the term "exceptional circumstances" should be interpreted in light of the principles underlying the RPBA. It added that these principles had been developed by the boards in connection with the right to be heard (Art. 113 EPC), the right to oral proceedings (Art. 116 EPC) and the right to a fair hearing both under Art. 6 ECHR (as per decisions G 1/05, OJ 2007, 362, G 2/08 of 15 June 2009 date: 2009-06-15; T 1676/08, R 19/12 of 25 April 2014 date: 2014-04-25) and Art. 125 EPC (T 669/90, OJ 1992, 739). The right to be heard also related to the right to introduce and have heard evidence as defined in Art. 117 EPC (T 2294/12). Art. 114(2) EPC, however, clarified that such a right was not absolute. In each case it was thus incumbent on the deciding board to balance the right to be heard with the public interest in doing justice in good time. The board agreed with T 855/96, in which the board had emphasised the position of the Boards of Appeal as the only judicial instance in proceedings before the EPO.
In T 2920/18 the board noted that the wording of Art. 13(2) RPBA did not require the amendment to be triggered by exceptional circumstances. The exceptional circumstances could also be of a legal nature. In addition, a teleological interpretation which considered the purpose of the EPO’s power to disregard late submissions as enshrined in Art. 114(2) EPC and Art. 123(1) EPC seemed to support this conclusion. Indeed, it followed from the preparatory documents to the EPC 1973 (see T 122/84, T 951/91) that this procedural possibility was intended to prevent the parties from improperly delaying the proceedings. This power did not constitute a procedural end in itself. See also T 2295/19 by the same board, confirmed e.g. in T 1800/21.
This approach was further confirmed in e.g. T 1857/19, T 1709/20 and T 732/21 (in the latter the board held that the purpose of the RPBA was the defence of the parties' rights to a fair hearing within a reasonable time).
Many decisions following this approach relate to late-filed requests in which only a single category of claim or dependent claims were removed from the previous request. See, for example, the discussion of the related case law in T 1800/21, as well as chapter V.A.4.5.4j).