Key points
- The Board holds a request filed during oral proceedings inadmissible even though the Board came to a different claim interpretation during the oral proceedings and somewhat different reasoning for inventive step.
- “In passing, the board also notes the following. If oral proceedings are to serve a purpose, it would seem that there must be room for the discussion during oral proceedings to deviate to an extent from the preceding written submissions - at least in terms of facts and arguments within the meaning of Article 114 EPC. It would therefore be necessary for everybody concerned, the parties and the board, to have some leeway to adapt their opinions in view of that discussion without such a change, in and by itself, being sufficient to justify further amendments [as admissible under Art.13(2) RPBA].”
- As a comment, I think the relevant provision is Art.113(1) EPC (wherein the right to comment on the grounds (for the future decision) involves a right to submit amended claims where appropriate).
T 0545/19 -
https://www.epo.org/law-practice/case-law-appeals/recent/t190545eu1.html
Third auxiliary request
18. The third auxiliary request is an amendment to the respondent's case which, according to Article 13(2) RPBA 2020, shall, in principle, not be taken into account unless there are exceptional circumstances, which have been justified with cogent reasons by the respondent. In view of the above discussion (point 15), the board stresses that Article 13(2) RPBA 2020 puts - deliberately and clearly - a much more stringent requirement on the admittance of the amendment than Article 12(4) RPBA 2007.
source http://justpatentlaw.blogspot.com/2021/06/t-054519-if-oral-proceedings-are-to.html