4.10.1 New arguments on appeal

Further information on "new arguments" is contained in chapter IV.C.4.7.

Art. 12(2) RPBA 2007 provides that the statement of grounds of appeal should specify expressly all the facts, arguments and evidence relied on by the party. Art. 13(1) RPBA 2007 leaves it to the board's discretion to admit any amendments to a party's case after that.

The board in T 1621/09 held that, to the extent the Enlarged Board of Appeal's opinion in G 4/92 (OJ 1994, 149) dealt with the general admissibility of new arguments in appeal proceedings, it had to be regarded as having been modified by the amendments to the RPBA introduced with effect from 1 May 2003. In addition, the board examined whether or not new arguments first brought forward during oral proceedings but based on citations already in the proceedings could constitute an amendment to a party's complete case within the meaning of Art. 13(1) RPBA 2007. The board said they could, and concluded that the admissibility of such arguments was therefore prima facie a matter for the board's discretion. The boards in T 232/08, T 1069/08, T 1732/10, T 1761/10, T 433/11 and T 1847/12, came to similar conclusions.

The board in T 1914/12 held (contrary to T 1621/09) that the boards did not have any discretion when it came to the admissibility of late-filed arguments based on facts already in the proceedings. Invoking Art. 114 EPC, which in English referred to arguments (as well as to facts and evidence) in paragraph 1, but not in paragraph 2, it concluded that the discretion conferred by paragraph 2 did not extend to late-filed arguments and observed that this was in line with the pre-2011 case law (e.g. T 92/92, T 861/93, T 131/01, T 704/06, T 926/07 and T 1553/07). It noted that two decisions had been taken in September 2011 – T 1069/08 and T 1621/09 – in which that case law had been questioned on the basis of Art. 13(1) in conjunction with Art. 12(2) RPBA 2007 and it had been concluded that the boards did have some discretion when it came to late-filed arguments. However, it was unconvinced by the reasoning underlying these decisions. Their interpretation ignored the fact that Art. 114(2) EPC provided no justification for such discretion, as the older case law had held many times. In English at least, the EPC, and in particular Art. 114, treated facts and arguments differently. More specifically, Art. 114(2) EPC explicitly conferred discretion for late-filed facts but not for late-filed arguments based on facts already in the proceedings. The RPBA, although they could provide more detail on and help in interpreting the EPC, could not give the boards powers that the EPC did not.

The right to be heard is not to be understood as a right to have every argument taken into consideration, regardless of when in the proceedings it was submitted (T 647/15).

In T 1348/11 the board considered that the new line of argument advanced by the appellant amounted to an amendment of the appellant's case within the meaning of Art. 12(2) and 13(1) RPBA 2007, because it represented a departure from its initial line of argument and not just a further development of it.

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