Résumé de Art 13(2) RPBA 2020 pour la décision T1774/21 du 18.04.2024

In T 1774/21 the appellant had raised a new objection under Art. 123(2) EPC against a feature of the main request (patent as maintained by the opposition division) in its statement of grounds of appeal. The respondent, after first having replied to this allegedly new line of attack with counter-arguments, had requested only in its response to the board's communication under Art. 15(1) RPBA that this line of attack not be admitted into the proceedings pursuant to Art. 12(2), (4), (6) RPBA. The board rejected this request for non-admittance of the objection. The board first explained that, in the context of the RPBA, the term "requests" included requests for non-admittance of, for example, an objection (contrary to what was suggested in T 1006/21). The general term "requests" was not limited to texts of patent applications or patents. When the RPBA sought to specifically address the issue of amendments of such texts, it expressly referred to "an amendment to a patent application or patent" (see Art. 12(4), fourth sentence, or Art. 13(1), fourth sentence, RPBA). This understanding was also confirmed in the explanatory remarks to Art. 12(2) RPBA (see Supplementary publication 2, OJ EPO 2020, 17). The board concluded that a request for non-admittance of an objection filed after the initial phase of the appeal proceedings constituted an amendment to the party's appeal case. The respondent also argued that the request for non-admittance of the "new line of attack" should be admitted into the proceedings due to exceptional circumstances, as the appellant had failed to identify the "new line of attack" as an amendment in its statement of grounds of appeal and to give reasons why it had not been raised before the opposition division, contrary to what was required by Art. 12(4) RPBA. The appellant had countered that this objection was not "new" as it had been raised during oral proceedings before the opposition division. The board held that, even assuming in the respondent's favour that this objection was indeed raised for the first time in the appellant's statement of grounds of appeal, the circumstances of the present case were neither exceptional nor could they justify the filing of the respondent's request for non-admittance only after the board's communication. The board pointed out that it was for the party itself to assess whether there is - in its opinion - an amendment to the other party's case and how to respond to it. The board rejected the respondent's argument that the board was under the obligation, ex officio, to assess and decide on admittance of the "new line of 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 gave the board the power to "disregard facts or evidence" which are not submitted in due time. However, the fact that Art. 114(2) EPC stated that the EPO (therefore a board of appeal), "may" do so, also meant, that a board was not obliged ex officio to examine whether a submission was made "in due time". In the board's view such an obligation could also not be inferred from the principle of ex officio examination laid down in Art. 114(1), first sentence, EPC. In general, the principle of ex officio examination was to be applied in opposition appeal proceedings in a more restrictive manner (cf. G 9/91, point 18 of the Reasons), which was due to the fact that such proceedings could be regarded as essentially party-driven. In addition, this principle did not go so far as to require a board to examine whether an objection was late filed. Such an understanding of Art. 114(1), first sentence, EPC would be difficult to reconcile with the power given under Art. 114(2) EPC that may or may not be used. The board disagreed with point 27 of the Reasons of decision T 1006/21 in this respect.