4.5.4 Admittance of new requests
The principles described in chapter V.A.4.5.4f) above also apply to a revised opinion of a board if it contains in essence objections already made by parties at an earlier stage of proceedings. Whether it diverges from a previous preliminary opinion was considered irrelevant in such cases.
In T 752/16, for instance, the board considered that it was irrelevant for the purposes of Art. 13(2) RPBA whether the revised preliminary opinion in its second communication under Art. 15(1) RPBA diverged from a previous position or differed from the contested decision. Parties to proceedings before the boards always had to reckon with an unfavourable preliminary opinion at any time up to announcement of the decision. The board observed in this connection that the main purpose of communicating a preliminary opinion under Art. 15(1) RPBA was to define the scope of the oral proceedings and that it was a procedural measure designed to make it easier for the parties to prepare for them efficiently, not an "invitation" to make further amendments (see e.g. T 1459/11). Patent proprietors were not entitled to hold back on making amendments in response to an opponent's objections until being confronted with an unfavourable preliminary opinion of the board or realising that the board was not going to endorse their position and arguments (see e.g. T 136/16, T 2072/16). See also T 1187/16 and T 646/17.
In T 995/18 too, the board held that it was irrelevant for the purposes of Art. 13(2) RPBA whether it departed at the oral proceedings from its preliminary opinion in the communication under Art. 15(1) RPBA. Each party to appeal proceedings had to present its own case at the outset – if necessary, by responding to the case made by the opposing party immediately – rather than waiting until the board confronted it with an unfavourable opinion. Changing an opinion expressly referred to as preliminary in the light of the oral discussion of arguments that were all already known from the written proceedings could not serve as justification for the purposes of Art. 13(2) RPBA. The board nevertheless admitted the auxiliary request filed at the oral proceedings on the basis that it did not regard it as an amendment within the meaning of Art. 13(2) RPBA (see chapter V.A.4.2.3d) above).
Similarly, in T 924/22, the board explained that given that the opinion in the communication under Art. 15(1) RPBA is preliminary, it was an objectively possible and foreseeable outcome of the oral proceedings that this opinion may change in the light of the submissions made at the oral proceedings (if this were not so, then oral proceedings would serve little purpose). It was therefore not an exceptional circumstance.
For further examples where the board changed its opinion in the course of the proceedings, but this was not accepted as an exceptional circumstance in the case at issue, see e.g. T 24/18 and T 920/20. This situation has to be distinguished from that where the amendment has been filed as a direct response to a new line of argument raised by the board of its own motion (see e.g. T 1482/17).