EPO Clarifies «Exceptional Circumstances» for Late Appeal Amendments

21 / 2 / 2024

The EPO's Rules of Procedure of the Boards of Appeal (RPBA) establish strict criteria for late amendments during oral proceedings. Article 13(2) RPBA states that such changes are generally not accepted unless justified by "exceptional circumstances".

In a key case, the Board ruled that a mere change in claim interpretation leading to a new objection did not meet the threshold for exceptional circumstances unless directly relevant to the final decision.

However, in another case, late-filed prior art documents were admitted due to their objective difficulty in discovery and high relevance to the case, meeting the criteria for exceptional circumstances.

Similarly, in a different scenario, the Board rejected an appellant’s attempt to amend its case based on the Board’s preliminary opinion, stressing the importance of upfront detailed arguments.

In ex-parte proceedings, like those stemming from decisions of an Examining Division, the standard for admitting late-filed amendments may be less stringent. In some cases, prima facie allowable amendments may be considered, even without exceptional circumstances.

While RPBA discourage late amendments without exceptional circumstances, flexibility exists in ex-parte proceedings. Nonetheless, it’s wise to present comprehensive arguments early to avoid relying on exceptional circumstances or Board discretion.

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