k) Amendment not detrimental to procedural economy and no other party negatively affected 

While in numerous decisions the boards have considered that there needs to be a causal link between the "exceptional circumstances" and the time of filing of new submissions in the proceedings (e.g. T 2463/16, T 2486/16), or that the "exceptional circumstances" need to justify the filing of new submissions only at this advanced stage of the proceedings (e.g. T 1904/16, T 1590/19, T 2795/19), in numerous other decisions the boards have interpreted "exceptional circumstances justified with cogent reasons" in a broader sense. 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 of doing justice in good time. There have been numerous other decisions in the same vein in which "exceptional circumstances" were seen as ones in which admittance would not impair the procedural rights of another party or procedural economy (see e.g. T 1294/16, T 101/18, T 1290/18, T 1598/18, T 2920/18, T 339/19 and T 2465/19). For an overview of the case law on the interpretation of "exceptional circumstances" and, more generally, of the various different approaches to interpreting Art. 13(2) RPBA, see chapter V.A.4.5.1.

Many of the decisions adopting the more lenient approach concern cases in which a claim alternative, dependent claims or an entire claim category has been deleted. On these cases see chapter V.A.4.5.4j). In the following, some further decisions are summarised in which the boards following this approach have dealt with amendments other than deletions of claims or claim alternatives.

In ex parte case T 1294/16 the board observed that the example of exceptional circumstances provided in the explanatory remarks (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, notably the principles underlying the RPBA. Art. 12 and 13 RPBA implemented the "convergent approach", the major motivation for which 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 case in hand, the board admitted the three late-filed auxiliary requests because they were filed in ex parte proceedings and the board was able to deal with the amendment without undue delay during the oral proceedings.

In T 2465/19 (likewise ex parte) the claims and the adapted description (main request) had been filed as a response to the express invitation of the board in its communication under Art. 15(1) RPBA to file such amended application documents. The board was satisfied that the amendments prima facie appeared suitable to overcome the outstanding objections and admitted the request under Art. 13(2) RPBA. In the board's view, Art. 12 and 13 RPBA mainly served to prevent the raising of issues that could not be expected to be treated by other parties or the board within the foreseeable extent of the appeal proceedings.

In inter partes case T 339/19, in which the respondent replaced two percentage ranges by two percentage values in its new main request, the board agreed with the interpretation of "exceptional circumstances" explained in T 1294/16 and held that "exceptional circumstances" were those that compromised neither the procedural rights of the other party, nor procedural economy. The new main request had been filed after receipt of the preliminary opinion, which had not raised any points of fact or of law that had not already been addressed. But the board found it a good-faith attempt to overcome the inventive step objection raised against the main request then on file. Moreover the request did not raise new issues, could be dealt with within the current framework of proceedings and posed no additional difficulties or surprises for either the other party or the board.

Decision T 1294/16 was also followed in T 2920/18, in which the board added that a teleological interpretation of "exceptional circumstances" which considered the purpose of the EPO’s power to disregard late-filed facts or evidence and the discretionary power to refuse new requests as enshrined in Art. 114(2) EPC and Art. 123(1) EPC seemed to support this view. Indeed, it followed from the preparatory documents to the EPC 1973 (cf. T 122/84, T 951/91) that this procedural possibility was intended to prevent the parties from improperly delaying the proceedings. In particular, it served to ensure the principles of procedural economy and of procedural fairness. The power to disregard late submissions under the EPC did not constitute a procedural end in itself.

In T 1686/21, concerning a new specific combination of features, the board likewise held that exceptional circumstances could justify the admissibility of a request filed for the first time at the oral proceedings before the board even when the amendment were made in response to an objection raised long ago. In the case in hand, the board held that the amendment, which clearly solved the issue raised against the patent as maintained, could not be considered surprising for the appellant in such a way as to negatively affect its position in the appeal proceedings. Furthermore, the amendment did not give rise to new objections and was not detrimental to procedural economy. The board also pointed out that, in view of the large number of different objections raised under Art. 76(1) EPC, the number of requests to be filed at the very beginning of the appeal proceedings in order to provide appropriate fall-back positions for every possible outcome of the assessment of compliance with Art. 76(1) EPC would have been extremely high and therefore not compliant with procedural efficiency.

The case in T 1774/17 concerned a clarifying claim-amendment during oral proceedings which was not objected to by the other party. The single-word amendment which was intended to overcome an Art. 123(2) EPC objection merely made explicit a feature which the opposition division had already considered to be implicit in the request on which the decision under appeal was based. The board therefore decided to admit the request. The other party's agreement was also mentioned in T 1294/16 as an element to be taken into account when establishing exceptional circumstances.

For further inter partes cases in which amendments were not detrimental to procedural economy and did not negatively affect any other party, see e.g. T 1055/17, T 732/21, T 1758/22.

See however also those decisions cited in chapter V.A.4.5.1d) to V.A.4.5.1g), which advocate a stricter approach to the interpretation of Art. 13(2) RPBA, focussing on the time of filing and the party's duty to facilitate due and swift conduct of the proceedings.