Résumé de Art 12(4) RPBA 2020 pour la décision T0221/20 du 07.10.2022

In T 221/20 the board had to decide on the admittance of auxiliary requests 1 and 2 and documents K7 and K8. Auxiliary requests 1 and 2 were filed within the time limit set by the opposition division in its summons to attend oral proceedings. Documents K7 and K8 were filed some two weeks later by the opponent. The documents and auxiliary requests were re-filed in the statement of grounds of appeal and the reply to it, respectively. The board examined whether these submissions constituted an amendment to a party's case within the meaning of Art. 12(2) and (4) RPBA 2020. It noted that the decision under appeal was not based on auxiliary requests 1 and 2 and documents K7 and K8 were not discussed by the opposition division. However, as auxiliary requests 1 and 2 were filed within the time limit set by the opposition division in its summons and because the filing of documents K7 and K8 two weeks later constituted a direct reaction to the submission of these amended requests, the board was satisfied that auxiliary requests 1 and 2 as well as documents K7 and K8 were admissibly raised in the proceedings leading to the decision under appeal. Moreover, auxiliary requests 1 and 2 and documents K7 and K8 were maintained until the department of first instance took its decision. Therefore, the board concluded that in accordance with Art. 12(4) RPBA 2020, auxiliary requests 1 and 2 and documents K7 and K8 were not to be regarded as an amendment to the parties' respective cases. Since they were part of the appeal proceedings, the board had no discretion not to admit these requests and documents. This conclusion was uncontested by the parties and also confirmed in the explanatory remarks to Art. 12(4) RPBA 2020 (section VI. of document CA/3/19, Supplementary publication 2, OJ 2020, p. 56). The board remitted the case to the opposition division for further prosecution under Art. 111(1), second sentence, EPC and Art. 11 RPBA 2020.