m) Belated substantiation of objections  

Substantiating a previously unsubstantiated objection does not qualify as a mere refinement but constitutes an amendment to the appeal case (see e.g. T 2117/18 in which the board, referring to case law on unsubstantiated requests, also held that an objection becomes effective only when sufficient substantiation is provided).

In T 2253/16 the board found that the appellant's (opponent's) submissions in its grounds of appeal in support of its contention that D4 was novelty destroying were not adequately substantiated and therefore could not be considered (Art. 12(3) RPBA and Art. 12(4) RPBA 2007). In particular, there was no analysis of D4 showing where the appellant considered which claim features to have been disclosed. At the oral proceedings, the appellant wanted to present the case on D4 it had made in the opposition proceedings but not included in its grounds of appeal. However, the board considered that fleshing out its incomplete appeal case in this way would amount to amending it.

In T 1217/17 the board decided to disregard several lines of argument merely mentioned but not adequately substantiated in the reply to the appeal. At the oral proceedings, the respondent (opponent) announced that it would be "expanding" on these arguments. The board however found that, for those lines of argument for which the reply merely referred to arguments put forward in the opposition proceedings, any submissions at the oral proceedings would have to be regarded as forming an entirely new appeal case. As to the other lines of argument, the board observed that the respondent's reply did not set out a logical chain of arguments as regards lack of inventive step, so any submissions on this point too would amount to a change in the substance of its appeal case. The announced submissions were not merely new arguments but also new facts, e.g. the features analysis missing from the reply and the detailing of the specific passages in the adduced evidence that the respondent regarded as destroying the novelty of claim 1.

For further cases where the boards have held that the later substantiation of an unsubstantiated objection constitutes an amendment within the meaning of Art. 13 RPBA, see T 329/16 (no inventive step arguments raised by the opponent despite extensive novelty arguments from the patent proprietor in its statement of grounds of appeal), T 988/17 (one attack substantiated in the reply, but attack starting from D1 substantiated only in that it "does not lead to a different assessment"), T 1903/17 (reference to unsubstantiated arguments in the notice of opposition on the asserted lack of reproducibility of pending claims), T 2200/17 (mere reference to notice of opposition in the grounds of appeal), T 1436/18 (submissions of the appellant 2-opponent on inventive step too vague and general).