In T 1108/16 the appellant responded to the filing of auxiliary requests by objecting that they extended the scope of protection. The respondent (patent proprietor) did not comment on this objection, taking the view that the appellant had not submitted any new facts. The board found as follows: a party's omitting to carefully analyse the opposing party's written pleadings and preferring to wait for the board's preliminary opinion before responding to an objection was at odds with the function of appeal proceedings, which were aimed at reviewing the contested decision, and with the rule designed to ensure the necessary procedural economy that parties had to present their complete cases at an early stage (Art. 106(1) EPC, R. 99(2) EPC and Art. 12(2) RPBA 2020). The respondent's conduct ran counter to procedural economy and so the board refused to admit the arguments it had submitted only in response to the board's communication.
Whether an objection could have been filed earlier is also a factor to be considered in establishing whether the party concerned has put forward cogent reasons demonstrating exceptional circumstances. On this point, see in particular chapters V.A.4.5.4b) "Causal link between the exceptional circumstances and the late filing", V.A.4.5.6a) "Purpose of the board's preliminary opinion" and V.A.4.5.8c) "No cogent reasons why the objection had not been raised earlier".