In T 133/92
the board concluded that considering and deciding in substance on the maintenance of the patent on the basis of claims as amended during oral proceedings in the absence of the appellants (opponents) did not conflict with the opinion of the Enlarged Board of Appeal in G 4/92
. The board stated that the respondent's (patentee's) restrictions to the claims removed objections already raised by the appellants. In such a situation the appellants could not have been taken by surprise, because they had reasonably to expect that the respondent would try to overcome all objections. The submission of auxiliary requests was clearly not a "fact" within the meaning of G 4/92
. Were it otherwise, no decision could ever be issued at the end of a hearing where, as is usually the case, auxiliary requests are filed and, as is also frequently the case, the opponent does not attend the hearing, thereby rendering such hearings pointless and a waste of time, as well as offending against the general principle of legal certainty, i.e. the general interest of the public in the termination of legal disputes. Likewise, the board held in T 771/92
that the decision to maintain the patent on the basis of a set of claims amended during oral proceedings in the absence of the appellant did not conflict with the principles described in G 4/92
. The submission of restricted claims was neither a fact nor could it be evidence. The appellant could not be taken by surprise by the amendment made, because he had reasonably to expect that the respondent would try to overcome the objections made. The amendments resulted from the novelty objection made by the appellant during the written procedure.