Abstract on Art 13(2) RPBA 2020 for the decision T0599/21 of 26.06.2023

In T 599/21 auxiliary requests 2.1 and 2.2 were filed in response to the board's preliminary opinion. The appellant argued that auxiliary request 2.1 should be admitted into the proceedings since the preliminary opinion of the board contained new arguments. In particular, the reference to page 14 of the description had not been brought up by the examining division and the term "content of the first interface" had been interpreted differently by the examining division. The board did not agree. It underlined that its preliminary opinion confirmed the decision under appeal. The examining division had already considered that the wording of the claims was too broad, in particular due to the broad possible interpretation of the term "content of the first interface". The board using the description to confirm the examining division's broad interpretation of this term could not have taken the appellant by surprise. In the board's view, the board's citation of a passage of the description did not confront the appellant with facts previously unknown to it. In consequence, it did not constitute an "exceptional circumstance" which could justify amendments to the appeal case. Moreover, regarding certain aspects of its feature analysis, the board held that this was merely a supplementary explanation of the mapping provided by the examining division. It did not constitute an alteration of the line of reasoning or a new argument and thus also could not serve as a cogent reason for amending the appeal case at this late stage of the proceedings. The same considerations applied to auxiliary request 2.2. In view of the above, the board decided not to admit auxiliary requests 2.1 and 2.2 into the proceedings.