e) Meaning of "exceptional" 

According to one line of case law "exceptional circumstances" within the meaning of Art. 13(2) RPBA generally concern new or unforeseen developments in the appeal proceedings, such as new objections raised by the board or another party (e.g. T 1702/18, see also T 1780/19), whereas circumstances outside the appeal proceedings (e.g. T 2329/15, T 1583/21, T 2482/22) or the normal course of events (T 1870/15, T 2214/15, T 2271/17, T 24/18, T 1436/19, T 1959/19, T 599/21) cannot justify late submissions. See also T 1558/22 and T 2124/21 for circumstances in the sphere of responsibility of the submitting party.

Accordingly, exceptional circumstances have been acknowledged where, for instance, the filing of new requests constituted a legitimate and timely response to a new objection raised by the board (in its communication under Art. 15(1) RPBA, see e.g. T 2306/17, T 1255/18, T 974/20, or at the oral proceedings, see e.g. T 1561/15). In this context, a "new objection" means one not covered by those previously raised by the board or a party (T 2610/16, T 42/17).

In contrast, where an objection had already been raised by the first-instance division or a party, the board's raising of these objections (e.g. T 1187/16; even where this involved a change in the board's opinion, e.g. T 752/16, T 995/18), or objections merely developing the objections originally raised or stating them more precisely (e.g. T 2539/16, T 1080/15) or objections to unsuccessful attempts at overcoming previously identified issues (T 2214/15) has been seen as an ordinary development in the appeal proceedings which could therefore not justify the filing of new requests.

However, in other decisions, in particular regarding the deletion of claim categories, the boards have found that "exceptional" could be interpreted more broadly:

In T 1294/16, for instance, the board noted that the example of exceptional circumstances provided in the explanatory remarks in CA/3/19 (namely a new objection raised by the board) suggested that exceptionality was not necessarily linked to events being exceptional in the sense of deviating from the expected, but could also be caused by considerations related to the legal framework. Since the major motivation for the "convergent approach" was the procedural economy of the appeal proceedings, it was appropriate to accept that there were "exceptional circumstances" if admittance of a (late-filed) submission was not detrimental to procedural economy, provided that this did not adversely affect any other party. See also e.g. T 1598/18 (by the same board, inter partes) and T 2920/18 (inter partes), in which the board confirmed that exceptional circumstances could be of a legal nature.

For further examples of case law giving "exceptional circumstances" a broad meaning which accommodates cases in which procedural economy and the rights of the parties are safeguarded, see T 713/14, T 101/18, T 545/18, T 1968/18, T 339/19, T 2111/19. See also the decisions cited in chapter V.A.4.5.1d) above and in V.A.4.5.4k) dealing in particular with requests in which claims or claim alternatives have been deleted.

In T 2352/19 the board held that the term "exceptional circumstances" needed to be interpreted in the light of the principles underlying the EPC and the RPBA. The board derived from this that exceptional circumstances could justify the admittance of a new request filed in response to a new aspect raised by the board, only if this aspect was ultimately relevant for the board's final conclusion. Otherwise, the parties' right to be heard was not affected and there would be no reason for exceptions to be applied.