In T 1756/16 the board considered that the fact that auxiliary request 1, initially filed with the reply, had been slightly amended again in response to its communication under Art. 15(1) RPBA 2020 did not justify the new objection (lack of inventive step) subsequently filed by the appellant, because the new auxiliary request 1 was similar in content to the old one and the appellant had already had an opportunity to respond to the filing of that older request. In this connection, the board observed that the new RPBA instructed the boards not to send a summons in inter partes proceedings any earlier than two months after receipt of the reply (Art. 15(1) RPBA 2020). The aim of this timing was to give parties an opportunity to respond to another party's written reply with submissions which would still fall under the less stringent second level of the convergent approach.
In T 482/18 it was not until the oral proceedings on appeal that the appellant (opponent) raised objections under Art. 123(2) and 84 EPC to a term in the claims according to the main request (identical to the auxiliary request on the basis of which the opposition division had maintained the patent). It had not contested the feature in question under Art. 123(2) EPC before the opposition division, which had rejected a clarity objection to this feature. The board dismissed the opponent's arguments in support of admitting this amendment to its appeal case. In particular, it could see no basis for inferring from Art. 114 EPC 1973 (identical to Art. 114 EPC) any essentially absolute right to raise such objections in any circumstances and at any time or even any duty of the board of the kind asserted by the opponent to investigate of its own motion.
In T 1771/17 the appellant (opponent) raised a novelty objection against claim 1 of auxiliary request 2B, which had been filed as a legitimate response to the board's preliminary opinion and so admitted. The board noted that auxiliary request 2B was based on an earlier request already on file and against which no objection had been raised by the appellant in the written proceedings. Since the new novelty objection would have equally applied to the earlier request and the appellant had not provided any cogent reasons why it had not been filed earlier, the board decided not to take it into account.
In T 847/20 the admittance of a request submitted with the statement of grounds of appeal was challenged by the respondent (opponent) only during oral proceedings. The board considered that the objection to admittance of this request should have been raised in the respondent's rejoinder. In the absence of valid reasons to raise this objection during oral proceedings, the board found it appropriate to exercise its discretion under Art. 13(2) RPBA 2020 not to admit it into the proceedings.