T 3272/19 - Art.12(4)(s.1) RPBA, unless clause

 Key points

•  This decision was published already in March 2021 but it still warrants writing a blog post. 
• Art. 12(4) RPBA 2020 applies as to the temporal scope (notice of appeal filed 18.12.2019, statement of grounds filed 18.02.2020).
• The Board: “Although D9a and D13 were cited in the contested decision [], these documents were undoubtedly filed after the nine months deadline pursuant to Article 99(1) EPC (i.e. they were late-filed). However, the admittance of these documents, which was not decided upon in the contested decision, was requested by the respondent. The appellant explicitly indicated at the oral proceedings before the Board that they had no objection against the admittance of D9a and D13 into the proceedings. Further considering that ... the Board finds it appropriate to exercise its discretion pursuant to Article 12(4) RPBA 2020 by admitting D9a and D13 into the proceedings.”.
• Now, the point of this blog post: are D9a and D13 subject to Art. 12(4)? 
• Let's be precise, so the question is whether their filing falls under “such amendment” as defined therein which “may be admitted only at the discretion of the Board” in the sense of Art.12(4)(s.2), which is the legal basis invoked by the Board. 
• The requirements for being “such amendment” are defined in Art. 12(4)(s.1) as:  “(i) Any part of a party’s appeal case which does not meet the requirements in paragraph 2 is to be regarded as an amendment, (ii) unless the party demonstrates that this part was admissibly raised (iii) and maintained in the proceedings leading to the decision under appeal” (roman numerals added). The question in the present case is whether the “unless clause” applies. Because the documents evidently were “maintained in the proceedings leading to the decision under appeal” (they were cited in the decision of the OD), the question is whether they were “admissibly raised ... in the proceedings leading to the decision under appeal”. 
• The Board observes that D9a and D13 were filed after the expiration of the nine-month opposition period, namely on 02.05.2019 leading to this remark of the Board: "these documents were undoubtedly filed after the nine months deadline pursuant to Article 99( 1) EPC (i.e. they were late-filed). "
• Here there are two remarkable things: (i) as far as I know, not every document that the opponent submits before the OD after the nine-month opposition period is automatically and always inadmissible, so I don't understand what the Board means by stating that the documents were "late-filed" only in view of them being filed after the expiration of the opposition period, and if that "late-filed" is the same as not admissibly raised ... in the proceedings leading to the decision under appeal and (ii) the documents at issue were filed by the patentee (letter) (in their written submissions).
• The documents were admitted, so the matter of the precise legal basis for admitting them is not dispositive, but it seems unfortunate that one of the very first decisions to apply the new "first level of convergence" that was introduced by Art. 12(4) RPBA 2020 does not seem to provide a helpful example of how to apply the new provision.
• A petition for review is pending (as R 9/21) but does not seem to concern the above aspect of the decision.

T 3272/19 - 

https://www.epo.org/law-practice/case-law-appeals/recent/t193272eu1.html

1.2 Documents D9a and D13

Although D9a and D13 were cited in the contested decision (section 6 of the Facts and Submissions), these documents were undoubtedly filed after the nine months deadline pursuant to Article 99(1) EPC (i.e. they were late-filed). However, the admittance of these documents, which was not decided upon in the contested decision, was requested by the respondent. The appellant explicitly indicated at the oral proceedings before the Board that they had no objection against the admittance of D9a and D13 into the proceedings. Further considering that:

- D9a was relied upon by both parties, in particular during the oral proceedings, who both indicated that the disclosure of D9a - in English - was equivalent to the one of D9 - in German -;

- D13 was already filed with letter of 2 May 2019 during the opposition proceedings, in support of then pending auxiliary request 4 (now auxiliary request 5), but did not need to be dealt with in view of the positive decision of the opposition division regarding the then valid main request.

the Board finds it appropriate to exercise its discretion pursuant to Article 12(4) RPBA 2020 by admitting D9a and D13 into the proceedings.