What Constitutes "Exceptional Circumstances" At The EPO

A number of recent decisions from the EPO's Technical Boards of Appeal have clarified what constitutes "exceptional circumstances" in appeal proceedings.

The EPO's Rules of Procedure of the Boards of Appeal¹(RPBA) outline a convergent approach to the admissibility of amendments to a party's appeal case. In particular, Article 13(2) RPBA specifies that any amendment to a party's appeal case late in oral proceedings (after an invitation from the Board or a summons to attend 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."

This high standard for amending a party's case late in proceedings is intended to ensure procedural economy. However, the question of whether there are exceptional circumstances is something on which parties and the Boards often disagree.