f) Meaning of "in principle" 

In several decisions the boards have discussed the question of how the term "in principle" in Art. 13(2) RPBA had to be construed.

In T 1294/16 (see also the summary in chapter V.A.4.5.1e)) the board discarded the possibility that this term was meant to provide a residue of discretion for the board to admit a request even in the absence of exceptional circumstances (or where no cogent reasons were supplied as justification for them) and concluded that it should be ignored. In T 2125/18 the board underlined that the wording "in principle" could not be understood to mean that Art. 13(2) RPBA could be applied simply where the board considered it fitting. Highlighting the convergent approach, the board found that, for the board to take the amendment to the appeal case into account, exceptional circumstances must have arisen. In the same vein, in T 2920/18, the board explained that the principle laid down in Art. 13(2) RPBA was precisely that amendments to a party’s case were not to be taken into account at this late stage of the procedure ("in principle"). The exception to this principle then followed in the half sentence introduced by the phrase "unless".

However, in T 172/17 the board held that Art. 13(2) RPBA did not remove the board's discretion to admit an amendment of a party's appeal case. The obligation expressed by "shall" was qualified by "in principle", and it was also up to the board to assess whether "exceptional circumstances" exist. The board referred to Art. 114 EPC in this context and to the explanatory remarks on Art. 13(2) RPBA (see supplementary publication 2, OJ 2020, 60), according to which the board may admit the amendment "in the exercise of its discretion". Citing T 172/17, the board in T 574/17 explained that when applying Art. 13(2) RPBA a board may also rely on the criteria referred to in Art. 13(1) RPBA. This was part of the board's exercise of discretion under Art. 13(2) RPBA. This discretion was inherent to the assessment of whether there were "exceptional circumstances" and was furthermore expressed by the phrase "in principle". Similarly, in T 424/21 the board interpreted the wording "shall, in principle," in Art. 13(2) RPBA such that it leaves the board some discretion in its assessment of the alleged exceptional circumstances. Sensibly applying this discretion appeared to the board to be particularly important in technical fields with patents containing a large number of dependent claims.