EPO amends the Rules of Procedure of the Boards of Appeal (RPBA)

News | 01.02.2024

Last year, HOFFMANN EITLE reported on our response to planned changes to the RPBA, which govern appeal proceedings before the Boards of Appeal. The EPO has now amended the RPBA, taking some of our concerns into account. The new RPBA came into force on 1 January 2024.

The two main changes included in the new RPBA relate to Articles 13(2) and 15(1).

Article 13(2) governs the third convergent stage of appeal proceedings, during which the amendment of the appeal case is most difficult. See our explanations of this issue here. Under the amended RPBA, this strictest stage will typically start with the notification of the communication under Article 15(1) (with which the Board generally provides a preliminary opinion). Previously, this stage of the appeal proceedings generally started with the notification of the summons.

Article 13(2):
Any amendment to a party's appeal case made after the expiry of a period specified by the Board in a communication under Rule 100, paragraph 2, EPC or, where such a communication is not issued, after notification of a summons to oral proceedings communication under Article 15, paragraph 1, shall, in principle, not be taken into account unless there are exceptional circumstances, which have been justified with cogent reasons by the party concerned.

In most cases, this change will give parties longer to make submissions during the appeal proceedings before the strictest third convergent stage begins. 

At the same time, the amendment to Article 15(1) changes the earliest date on which the Board can issue the communication referred to in new Article 13(2) above in inter partes proceedings. It has been reduced from two to one months from the receipt of the response(s) to the Grounds of Appeal.

Article 15(1):
Without prejudice to Rule 115, paragraph 1, EPC, the Board shall, if oral proceedings are to take place, endeavour to give at least four months' notice of the summons. In cases where there is more than one party, the Board shall endeavour to issue the summons no earlier than two months after receipt of the written reply or replies referred to in Article 12, paragraph 1(c). A single date is fixed for the oral proceedings. In order to help concentration on essentials during the oral proceedings, the Board shall issue a communication drawing attention to matters that seem to be of particular significance for the decision to be taken. The Board may also provide a preliminary opinion. The Board shall endeavour to issue the communication at least four months in advance of the date of the oral proceedings. In cases where there is more than one party, the Board shall issue the communication no earlier than one month after receipt of the written reply or replies referred to in Article 12, paragraph 1(c).

This amendment significantly increases the time pressure on parties to respond to any response to the Grounds of Appeal, if they wish to ensure that their submissions are made before the Board issues its communication under Article 15(1) RPBA and the preliminary opinion that is usually contained therein, and before the start of the strictest third convergent stage.