Reviewing Discretion: R 0010/24 on Manifestly Incorrect Non-Admission
The Enlarged Board of Appeal confirms that discretionary non-admission of requests under the RPBA is subject to review for 'manifestly incorrect' application, resolving a divergence in its jurisprudence.
The Enlarged Board of Appeal has confirmed that the discretionary non-admission of late-filed requests under the Rules of Procedure of the Boards of Appeal is subject to substantive review for "manifestly incorrect" application, not merely for arbitrariness.
In R 0010/24, the proprietor of EP 3 293 159 filed a petition for review after the Technical Board of Appeal revoked the patent and refused to admit an auxiliary request filed during oral proceedings. The patent concerned a method for burning lime or cement using syngas. The granted independent claim required the syngas to have a methane content of "more than 12 vol-%".
The opposition division had revoked the patent under Article 100(b) EPC, finding that the invention was not sufficiently disclosed across the entire open-ended range. On appeal, the Board initially issued a communication under Article 15(1) RPBA indicating that the invention was sufficiently disclosed.
The procedural pivot
During oral proceedings, the opponent reiterated arguments made earlier in the written phase, namely that methane levels of 20 to 25 vol-% were not achievable. Persuaded by this argument, the Board concluded that the open-ended range lacked an upper limit and was therefore insufficiently disclosed.
Faced with this shift, the proprietor filed an auxiliary request introducing an upper limit from the description. The Board declined to admit the request under Article 13(2) RPBA, stating that a change in the Board's preliminary opinion did not constitute exceptional circumstances. The proprietor subsequently filed a petition for review, arguing that the refusal to admit the request after a surprising procedural turn violated their right to be heard under Article 113(1) EPC.
The standard of review for discretion
The Enlarged Board used this petition to address a divergence in its own jurisprudence regarding the depth of review permitted under Article 112a EPC. While the Enlarged Board cannot act as a third instance reviewing substantive law, the panel acknowledged the severe impact that non-admission under Articles 12 and 13 RPBA has on a party's case.
The panel held that the interpretation and application of these provisions must be subject to substantive control beyond a mere check for arbitrariness (reasons 3.2). The Enlarged Board concluded that the right to be heard is violated if a Board applies the RPBA provisions in a manifestly incorrect manner. This establishes a clear standard: discretionary non-admission can be overturned if the exercise of discretion is obviously flawed, even if it is not strictly arbitrary.
Assessing the manifest error
Applying this standard to the facts, the Enlarged Board found no manifest error in the Technical Board's decision. The panel noted that the opponent had consistently argued throughout the opposition and appeal proceedings that higher methane concentrations were unattainable. The opponent had explicitly maintained this position in their reply to the Board's preliminary opinion.
Because the vulnerability of the open-ended range was recognizable from the file, the Enlarged Board found that the proprietor could not claim to be objectively surprised. The panel reaffirmed the established principle that a Board's departure from its preliminary opinion does not constitute an exceptional circumstance justifying late amendments under Article 13(2) RPBA (reasons 3.7.2).
Practical implications
The Enlarged Board has formally elevated the standard of review for discretionary non-admission, confirming that a manifestly incorrect application of the RPBA violates the right to be heard. However, the threshold for proving such an error remains exceptionally high.
For practitioners, the decision reinforces a harsh procedural reality. A favorable preliminary opinion from a Board of Appeal provides no procedural safe harbour. If an opponent has raised an objection in the written proceedings, the proprietor must file auxiliary requests to address it early in the appeal phase. Waiting to see if the Board changes its mind during oral proceedings will almost certainly result in the request being excluded under Article 13(2) RPBA, and the Enlarged Board will not intervene to correct the tactical miscalculation.