T 0755/16 - Late filed objection is late filed

Key points

•  The Board, in the headnote: " A request not to admit a certain document, this request having been filed for the first time during oral proceedings before the board, may constitute an amendment of the appeal case the admittance of which is governed by Article 13(2) RPBA 2020 "
  
• The Board in the decision: " The patent proprietor objected to the admittance of A018 neither in its reply to the grounds of appeal nor in its subsequent letters. The request not to admit A018 thus represented an amendment to the patent proprietor's case." 
• The word 'may'  in the headnote seems to soften the Board's actual reasoning a bit.
• The Board follows the trend of e.g. T 0847/20 r.3.1 and T 2619/17, though is the first to put it in a headnote, as far as I know.
• Treating the objection as a request is perhaps useful, but it is not the case that document A018 is to be admitted automatically if the other party does not request to hold it inadmissible, in my view.  
• As a comment, case law may in due course require that admissibility objections are timely, specific, and reasoned; without limiting the power of the Boards to hold case amendments inadmissible ex officio. (see here)

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://www.epo.org/law-practice/case-law-appeals/recent/t160755eu1.html

3. Admittance of the patent proprietor's request not to admit A018 into the proceedings

During the oral proceedings, the patent proprietor requested that A018 not be admitted into the proceedings.

A018 was submitted by the opponent with the statement of grounds of appeal and comprises two experiments relating to a method of concentrating an immunoglobulin solution by TFF. These experiments were discussed by the patent proprietor in its reply to the grounds of appeal (point 4). The patent proprietor objected to the admittance of A018 neither in its reply to the grounds of appeal nor in its subsequent letters. The request not to admit A018 thus represented an amendment to the patent proprietor's case. The admittance of the request is governed by Article 13(2) RPBA 2020, which applies to the case at hand in accordance with the transitional provisions set out in Article 25(3) RPBA 2020 (the summons to oral proceedings was notified after 1 January 2020).

In accordance with Article 13(2) RPBA 2020, any amendment to a party's appeal case made after notification of a summons to oral proceedings shall, in principle, not be taken into account unless there are exceptional circumstances which have been justified with cogent reasons by the party concerned.

Since A018 was filed with the statement of grounds of appeal, its admittance could have been objected to before the oral proceedings. The board sees no reason, and no reason has been cited by the patent proprietor, why this was not done. There are thus no exceptional circumstances which could justify the request made by the patent proprietor during the oral proceedings.

For these reasons, the board has decided not to admit the patent proprietor's request into the proceedings in accordance with Article 13(2) RPBA 2020.