4.5.4 Admittance of new requests
In T 2482/22, which concerned the last stage of appeal proceedings, the board rejected the argument that concerns of 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 a consequence, the possibility for a party to change its case or add to it was very limited, and increasingly so as the appeal procedure progressed. See also the summary in chapter V.A.4.5.1d). See also T 967/16, in which the board found that there was no established "last chance" doctrine or any absolute right for a patent proprietor to such a "last chance" request (with reference to CLB, 9th edn. 2019, V.A.4.12.7, and to T 837/07 and T 1624/16).
In T 1185/17 the appellant argued that auxiliary request 1, filed after notification of the summons to oral proceedings, overcame the objection under Art. 123(2) EPC referenced in the board's preliminary opinion and was prima facie allowable. The board, however, underlined that these were criteria under Art. 13(1) RPBA that applied to any amendment of the party's appeal case after it had filed its grounds of appeal and therefore could not simultaneously be cogent reasons justifying exceptional circumstances for taking an amendment into account under Art. 13(2) RPBA. See also T 2787/17.
In T 2964/18 the board held that the question of whether auxiliary requests 2a and 2b might be clearly allowable had no bearing on its conclusion that no exceptional circumstances existed that would justify the filing shortly before the oral proceedings. Similarly see T 1058/20, according to which prima facie allowability as such did not justify exceptional circumstances under Art. 13(2) RPBA. See also T 975/20, T 1959/19 and T 1610/22.
However, decisions in which clear allowability together with the fact that no other party was negatively affected were considered to constitute exceptional circumstances and the late-filed requests were admitted are contained in chapter V.A.4.5.4k) "Amendment not detrimental to procedural economy and no other party negatively affected". See also chapter V.A.4.5.4 j) on "Deletion of claims or alternatives in claims". In T 541/20 the board emphasised that it would be at odds with one of the declared aims of the RPBA, namely "to increase efficiency, by reducing the number of issues to be treated", that a board could not consider the criterion of prima facie allowability when deciding on the admittance of a request which simplified the case in hand in a substantial manner (by deletion of dependent claims).
In other situations, taking prima facie allowability as a criterion for exercising discretion can result in a refusal to admit the filed set of claims even where it was a timely response to new objections. On this see chapter V.A.4.5.4 e) "No carte blanche to amend claims at will – criteria set out in Articles 13(1) and 12(4) RPBA".