a) Waiting for the preliminary opinion not compatible with convergent approach

(i) Preliminary opinion not an invitation to make further submissions

The primary purpose of a board's preliminary opinion is to establish the framework of the appointed oral proceedings, i.e. to prepare the oral proceedings, rather than being an invitation to a party to make further submissions or to file further requests (T 2703/16, with reference to T 1459/11). See also e.g. T 752/16 (summarised in chapter V.A.4.5.4 h)), T 995/18, T 2271/18, T 121/20, T 920/20.

In T 2778/17 the appellant (applicant) argued that a reaction in response to the provisional opinion of the board should be possible. For reasons of procedural economy, it would not be expedient to file beforehand a plurality of auxiliary requests without knowledge of the opinion of the board. The board did not agree. It recalled the basic principle of the third level of the convergent approach that, at this stage of the appeal proceedings, amendments to a party's appeal case were not to be taken into consideration and that only a limited exception was provided for. The board could not see any exceptional circumstances justified with cogent reasons by the appellant. The appellant had merely stated that it considered it desirable and justified to amend its requests after having been provided with the board's provisional opinion on the merits of the case.

(ii) Requirement to respond to the case made by the opposing party

Each party to appeal proceedings must present its own case at the outset – if necessary, by responding to the case made by the opposing party immediately – rather than waiting to see whether the board later confronts it with an unfavourable opinion (T 995/18). See also T 1937/19, T 924/22.

In T 121/20 the respondent (patent proprietor) filed auxiliary request 1 in reaction to the board's preliminary opinion and argued that it appeared from this opinion that among the various objections of added matter raised by the appellant only one was convincing and that accordingly the amendments addressing the other objections were not necessary. The board, however, noted that the preliminary opinion was predominantly intended to give the parties an opportunity to thoroughly prepare their arguments, not to file new submissions. The board added that it would be against the principle of procedural fairness if the board allowed a party to take advantage of such a preliminary opinion to put them in a better position compared to the position they took in reply to the other party's case.