n) New objection based on documents already on file – new assertions of fact 

(i) Requirement to make new assertions of fact in due time 

The board in T 482/18 disagreed with the finding reached in T 1914/12 that facts apparent from the patent documents on the case file (here: disclosure of "rod-shaped" in the application as filed and clarity of that term) were automatically at issue on appeal without having been expressly asserted. That position was at odds with the nature of judicial proceedings, such as those before the EPO boards of appeal, which were of the kind proper to an administrative court, since such proceedings involved deciding on a factually supported case and so depended on the assertion of facts. On the board's interpretation of "argument", see chapter V.A.4.2.3p). See also T 250/19 (albeit dealing with this issue in the framework of Art. 12(4) RPBA 2007).

The Legal Board in J 14/19 shared the view taken by the board in T 482/18. Observing that late-filed submissions with factual elements could be disregarded on the basis of Art. 114(2) EPC, it held that the simple fact that a party had already submitted a particular document on appeal did not mean that its entire content formed part of its appeal case. If it later relied on parts of that document other than those it had previously cited, that could amount to amending its appeal case. It further found that both a new combination of factual aspects and a new combination of factual and legal aspects were as a rule to be treated as an amendment to the appeal case. Such an amendment had to be distinguished from a mere fine-tuning of an existing line of argument (as in T 247/20; see the abstract in chapter V.A.4.2.3l)); on the Legal Board's interpretation of "arguments" within the meaning of Art. 12(2) RPBA, see also chapter V.A.4.2.3p). Followed e.g. in T 1161/20 (new facts asserted in relation to knowing which parts of the device of D15 disclose the features of the invention).

(ii) New lack of inventive step objection 

In T 1042/18, the board endorsed the view in J 14/19, according to which both a new combination of facts (e.g. selecting a different citation or a different passage of a citation as the starting point for an objection) and a new combination of facts and law (e.g. referring to a document or passage in a different legal context) constituted an amendment to the appeal case. Therefore, in the board's opinion, an inventive step objection raised for the first time at the oral proceedings before the board starting from a citation that had previously only been invoked in relation to a novelty objection generally constituted an amendment to the appeal case as per Art. 13(2) RPBA. See also T 1851/21.

In T 2866/18 the board explained that the question of whether newly raised inventive step objections stayed within the same overall "factual and legal framework" as previous novelty objections was not decisive for the purpose of determining what constituted an amendment of the appeal case (see T 2360/17).

T 2796/17 and T 557/21 are further decisions in which new objections under Art. 56 EPC based on citations that were already part of the proceedings were regarded as an amendment to the appeal case.

(iii) New combination of documents 

In T 187/18 the board held that a new combination of documents (already cited as part of the appellant's inventive-step attack, but in different combinations) was not a mere elaboration on a previously pleaded line of argument, but a change to the party's case.

(iv) New added-matter objection 

In T 1707/16 it was only at the oral proceedings before the board that the appellant (opponent) – for the first time in either the opposition or the appeal proceedings – raised the objection that the feature at issue in claim 1 of the main request was not disclosed in figure 9, whereas it had previously argued that claim 1 contained an intermediate generalisation as the feature at issue was inextricably linked to the remaining features of the embodiment of figure 9. The board, however, considered that the question of whether or not figure 9 unambiguously disclosed the feature in question completely changed the framework of the discussion relating to Art. 123(2) EPC and therefore regarded it as an amendment to the party's case.