6.3.2 Appeal proceedings

In G 6/95 (OJ 1996, 649) the Enlarged Board of Appeal held that the mandatory procedural requirements in R. 71a(1) EPC 1973 (R. 116(1) EPC) did not apply to the boards of appeal. See inter alia T 48/00, T 382/02, T 1621/09, T 2182/10, T 355/13, R 8/13 of 15 September 2015. In G 1/12 (OJ 2014, A114) the Enlarged Board stated it had decided in G 6/95 that the provisions of R. 71a(1) EPC 1973 (now R. 116(1) EPC) relating to the first-instance procedure were not applicable within appeal proceedings, since the procedure before the boards was otherwise provided for, namely in the RPBA.

However, in T 97/94 (OJ 1998, 467) the board ruled that if a board decided to send the parties a communication under R. 71a(1) EPC 1973, the parties were obliged to comply with it, particularly as regards the deadline for reply. R. 71a(1) EPC 1973 was thus binding on the parties. The board in T 1105/98 stated that R. 71a(2) EPC 1973 was applicable to proceedings before the boards of appeal (see also T 813/99, T 401/02, T 681/02, T 1124/02, T 913/03, T 494/04).

In T 999/07 the board noted that the fact that requests were filed before the time limit indicated in the board's communication for filing any further submissions had no bearing on their admissibility. R. 116 EPC (old R. 71a EPC 1973) did not apply to the boards.

In T 1600/06 the board stated that Art. 13 RPBA 2007 set out the procedural provisions applicable to the boards of appeal rather than R. 71a(1) EPC 1973 (R. 116(1) EPC). In T 1100/10 the board stated that Art. 13(1) and 12(4) RPBA 2007 were directly derived from inter alia Art. 114(2) EPC and R. 116(1) EPC, which enshrine the well-established procedural principle requiring the filing of the parties' facts, evidence and arguments at the early stages of the proceedings.

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