4.4.11 Board's communication

In T 1168/08, the board stated that the appellants' justification for the late filing of the new requests, namely that they had been filed in reaction to the board's communication, was not acceptable here, because the argumentation in support of the board's preliminary opinion that the claimed subject-matter had no basis in the application as originally filed and lacked novelty corresponded in substance to the reasoning of the respondent in reply to the grounds of appeal. A board communication under Art. 15(1) RPBA is intended as guidance for the oral proceedings. It helps the parties to focus their argumentation on issues that the board considers crucial for reaching its decision. Where the board's communication contains a preliminary opinion based solely on the issues raised by the parties and their arguments, that communication cannot be taken as a justification for submitting new requests that the parties could have filed earlier. In the case at issue, the appellants, at the latest after having received the submissions of respondents, should have submitted one or more additional set(s) of claims in order to overcome those objections if they considered it necessary. They chose, however, not to file any such request.

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