T 1617/23 - Admissibility of arguments

Key points

• The new line of argument amounted to an amendment of the respondent's appeal case according to Art. 13(2) RPBA. Exceptional circumstances were not apparent to the board and were not substantially argued, either. 
• Yet it is questionable whether "arguments" are indeed covered by the provision of Art. 13(2) or in fact any other provision of the RPBA dealing with late filing. In this regard, decision T 1914/12 after an extensive analysis of Art. 114 EPC [...] and the traveaux préparatoires [...] came to the conclusion that the boards had no authority to reject arguments submitted at a late stage of procedure, and that the RPBA thus had to be interpreted in a restrictive manner in regard of late-filed arguments. 
• The board concurs with this view and adds that it would deprive an oral hearing of its function of a meaningful dialogue between the Board and party(ies) if only such arguments could be presented that had already been presented beforehand in writing. Otherwise, an oral hearing would become an exercise of reading out written submissions.
• At the place of the square brackets, in translation from T 1914/12: "Article 114(2) EPC grants the EPO departments a discretionary power as to the admission of "facts" (DE: "Tatsachen"; EN: "facts") which the parties have not invoked or "evidence" (DE: "Beweismittel"; EN: "evidence") which they have not produced in due time. It should be noted that the English version here is limited to facts and evidence only and does not include the reference to arguments in the second part of Article 114(1) EPC ("facts, evidence and arguments")" and "In response to a question from the German delegation, the EPO confirms that Article 10ter(1) RPBA excludes any new statement of facts, but not a change in the legal assessment. An open formulation has been adopted in order to allow for development of the law on the basis of case law."
•  "Yet the possibility of raising new arguments must find its limits where arguments cannot be properly followed or understood and the board finds itself at a loss even to grasp an argument's prima facie relevance. In such a situation, it would have been incumbent on the respondent to make submissions in writing prior to the hearing so that both the board and the other party find themselves in a position to properly digest, assess and discuss such argument. All of this was not possible in the case at issue."
• " Content-wise, the respondent's  [proprietor's] appeal case as presented in oral proceedings did not merely consist of an elaboration of a case already made. Rather, it presented its entire case concerning D4 for the first time. Furthermore, the arguments presented were extensive and complex to an extent that the board could not immediately assess their validity and prima facie relevance."
• "In view of these findings, the board exercised its discretion not to take into account the respondent's arguments presented at the oral proceedings."
• As a comment, a possible approach of the Boards is to carefully identify any new factual assertions in the new submissions and to hold the argumentation inadmissible as involving new facts.

EPO 

The link to the decision can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t231617eu1