4.1.1 Legal basis

Under Art. 114(1) EPC, the EPO is obliged to examine the facts of its own motion, and in doing so, it is not restricted to the facts, evidence and arguments provided by the parties and the relief sought. According to Art. 114(2) EPC, however, the EPO may disregard facts or evidence which are not submitted in due time by the parties concerned (on this point, see chapter opposition procedure, IV.C.4. "Late submissions").

In earlier case law it has been pointed out that the wording of Art. 114(1) EPC 1973 does not mean that the boards of appeal have to conduct rehearings of the first-instance proceedings, with unfettered right, and indeed obligation, to look at all fresh matter regardless of how late it was submitted. Art. 114(2) and Art. 111(1) EPC 1973 set a clear limit to the scope of any new matter that can be introduced into an appeal by the parties so that cases on appeal have to be, and remain, identical or closely similar to those on which decisions at first instance have been rendered (T 97/90, OJ 1993, 719; see also T 26/88, OJ 1991, 30, where it was stated that the essential function of the appeal procedure was to determine whether the decision issued by a department of first instance was correct on its merits; T 326/87, OJ 1992, 522; T 229/90; T 611/90, OJ 1993, 50; T 339/06 and T 931/06).

Facts and evidence submitted for the first time in appeal proceedings may be disregarded by the boards of appeal as a matter of discretion under Article 114(2) EPC 1973, which limits the boards' inquisitorial duties under Article 114(1) EPC 1973 (T 326/87, OJ 1992, 522).

On the review of discretionary decisions taken by departments of first instance on new submissions in proceedings before them, see chapter V.A.3.5.

It is settled case law of the boards of appeal that new requests containing amended claims may exceptionally be admitted in appeal proceedings. According to R. 100(1) EPC, the provisions in R. 137(3) EPC, relating to examination, and in R. 80 EPC, relating to opposition, apply by analogy in appeal proceedings. Under R. 137(3) EPC, further amendments of a European patent application may not be made without the consent of the examining division, while R. 80 EPC provides, in essence, that the description, claims and drawings may be amended if this is occasioned by a ground for opposition under Art. 100 EPC.

The RPBA too contain provisions on amendments to parties' cases, as described in the next section.

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