4.5.4 Admittance of new requests
In T 847/20 the admittance of a request submitted with the statement of grounds of appeal was challenged by the respondent (opponent) only during oral proceedings. The board considered that the objection to admittance of this request should have been raised in the respondent's rejoinder and exercised its discretion under Art. 13(2) RPBA not to admit it into the proceedings.
In T 1774/21 the appellant had raised an allegedly new line of attack against a feature of the main request (patent as maintained) in its statement of grounds of appeal. The respondent had requested only in its response to the board's communication under Art. 15(1) RPBA that it not be admitted into the proceedings pursuant to Art. 12(2), (4) and (6) RPBA. The board rejected this request and did not agree with the respondent's argument that it was under the obligation, ex officio, to assess and decide on admittance of this attack. It explained that a board may indeed examine of its own motion the question of whether an objection was filed "late", since it was not restricted to the facts, evidence and arguments provided by the parties and the relief sought (Art. 114(1), second sentence, EPC). Moreover, Art. 114(2) EPC indeed gave the board the power to "disregard facts or evidence" which were not submitted in due time. However, the fact that Art. 114(2) EPC stated that the EPO "may" do so, also meant that a board was not obliged ex officio to examine this issue. Such an obligation could also not be inferred from the principle of ex officio examination laid down in Art. 114(1), first sentence, EPC as in general this principle was to be applied in opposition appeal proceedings in a more restrictive manner (G 9/91, OJ 1993, 408). The board disagreed with decision T 1006/21 in this respect.
On whether a request for non-admittance of a new submission filed after the initial phase of the appeal proceedings constitutes an amendment to the party's appeal case in the first place, see chapter V.A.4.2.3j).