T 0341/92 (Basic lead salts) vom 30.08.1994

1. A decision may be based on a ground discussed for the first time during oral proceedings which would prevent the patent being maintained as amended, at least if the stage reached in the case was such that the absent - albeit duly summoned - patent proprietor could have expected the question to be discussed and was aware from the proceedings to date of the actual bases on which it would be judged (see G 4/92 - OJ EPO 1994, 149). 2. The decision can therefore be based on the ground - not discussed prior to the oral proceedings - that a claim amendment requested by the patent proprietor is, under Article 123(3) EPC, an inadmissible extension of the protection conferred.