c) Subjective surprise 

A subjective surprise has no bearing on whether a party knew the issues which might be raised and had an adequate opportunity to comment thereon (R 13/11, R 17/12; see, by way of example, also R 12/09 of 15 January 2010 date: 2010-01-15, R 22/10, R 1/13, R 3/13, R 4/14, R 5/16).

In R 8/13 of 15 September 2015 date: 2015-09-15 the Enlarged Board held that in order to determine which subject matter (grounds, facts and evidence) could have been expected to be discussed, and whether new facts and grounds were introduced ex officio by a board of appeal in its decision, the Enlarged Board has to check the file history (see also R 1/15).

In R 8/14 the Enlarged Board held that establishing the closest prior art is part of the process of arriving at a decision and takes place only after all arguments have been heard, in the final deliberations of the board. If the closest prior art is redefined because of an amendment to a claim, the board is not obliged to address this at oral proceedings. In R 2/16 the Enlarged Board found that there had been no need for the board hearing the case at issue to give advance notice of the objective technical problem defined in accordance with the problem-solution approach, nor to comment on whether the invention was obvious, in order to comply with the appellant's right to be heard. In its communication, the board had set out in great detail what prior art it was taking as the starting point and how it considered it to differ from the claimed invention. It had expressly stated that the issue of the problem solved would be settled at the oral proceedings and clearly specified which documents it provisionally considered relevant for assessing obviousness.

The petitioner in R 4/16 asserted that there had been at least some confusion on its part as to the scope of the discussion. The Enlarged Board held that whether or not a petitioner might have been confused was a highly subjective matter and was not enough by itself to establish that there had been a fundamental violation of its right to be heard. The most important thing was to examine the objective evidence of how the oral proceedings had unfolded, taking into account their place within the overall context of the appeal proceedings as a whole.