In T 764/03, the only reason given by the appellant for the failure to introduce the auxiliary requests at an earlier stage of the proceedings was that the patentee had taken so long to reach a decision on the patent content which it considered useful to prosecute from a competition point of view. The board observed that only the rules and the circumstances of the appeal proceedings in question could be considered when determining when requests had to be regarded as belated and what the legal consequences of such belatedness were. Circumstances extraneous to the proceedings, such as e.g. licensing negotiations or infringement proceedings were not factors which could be taken into account, unless they were put forward as grounds for a request for accelerated handling of a case (see also T 356/08, T 28/10).
In T 1544/08 the board stated in its catchword that the wish to avoid giving commercially valuable information to competitors was not necessarily a valid reason for not complying with the requirement of Art. 12(2) RPBA 2007.