Résumé de Art 13(2) RPBA 2020 pour la décision T1807/15 du 02.12.2022

See also abstract under Article 104(1) EPC. In T 1807/15 the board exercised its discretion pursuant to Art. 13(2) RPBA 2020 not to admit documents E7 and E8. The board held that, if more than one summons were issued in appeal proceedings (all after the entry into force of the RPBA 2020), Art. 13(2) RPBA 2020 referred to the first summons. In the present case a first summons to oral proceedings to be held in Haar was issued in January 2020. The oral proceedings had to be rescheduled due to the Corona pandemic and took place in the form of a videoconference in February 2021. During these first oral proceedings the appellant filed a request that a question of law be referred to the Enlarged Board of Appeal, to which the board acceded. Documents E7 and E8 were filed in July 2021 together with objections based on them. Following the closure of the case before the Enlarged Board, the board summoned the parties in February 2022 to attend second oral proceedings which took place in December 2022. The board held that the applicable provision for the exercise of the discretion on admittance was Art. 13(2) RPBA 2020. It was not convinced by the appellant's (opponent's) arguments according to which the rationale behind the convergent approach was procedural economy and its main object and purpose was to ensure that the board could decide at the end of oral proceedings. The board underlined that, most importantly, the appellant's stance was not reconcilable with the wording of Art. 13(2) RPBA 2020. There was nothing to indicate that the application of this provision was dependent on the subsequent procedural history of the case. Moreover, the appellant's stance was not reconcilable with the object and purpose of Art. 13(2) RPBA 2020 in the context of the revised version of the Rules of Procedure. According to Art. 12(3) RPBA 2020 the statement of grounds of appeal and the reply, respectively, had to contain the parties' complete appeal cases. The notification of the summons then set an objective and predictable trigger for the third level of the convergent approach. This was the point in the procedure when the board, in ordinary circumstances, could safely assume that all submissions of the parties were on file, so that the board could outline in the communication pursuant to Art. 15(1) RPBA 2020, what the most important issues to be discussed would be. At this point normally, the framework of the discussion at the oral proceedings was defined, and further amendments to the appeal case were only taken into account in exceptional circumstances. It followed that also in view of the object and purpose of Art. 13(2) RPBA 2020, the subsequent procedural development was entirely immaterial for the function of the summons as an objective and predictable start point for the third level of convergence. The board further explained that the appellant also erred in that procedural economy was the sole rationale behind the convergent approach. Another rationale was the implementation of the appeal proceedings as a judicial review of the decision under appeal (Art. 12(2) RPBA 2020). This principle limited the possibility to leave the legal and factual framework of the first instance proceedings at any point in the appeal procedure. Further reasons for the application of Art. 13(2) RPBA 2020 detailed by the board concerned among other things the function of the summons as predictable trigger for the third level of the convergent approach and a possible asymmetrical treatment of the two trigger points for the third level of the convergent approach, summons on the one hand and communication under R. 100(2) EPC on the other.