i) Repeated attempts at overcoming deficiencies 

In T 2214/15, the board held that there were no exceptional circumstances which would justify taking a further amended claim request (auxiliary request 3) into account. Rather, the identification of problems newly introduced when the appellant attempted to solve issues discussed in the proceedings up to that point was to be seen as an ordinary development of the discussion. Contrary to the appellant's submission, in the board's opinion, the present case was a typical case, where a central objection (that of lack of support) had been among the grounds for refusal, was identified and agreed with by the board and was the central topic throughout the appeal proceedings, thus typically not warranting the opportunity to file a further auxiliary request. The board pointed out that the topics of discussion in view of auxiliary request 2 (admitted but rejected as unallowable) did not differ in substance from those identified in the summons. The amendments were unsuccessful attempts at overcoming previously identified issues of clarity and lack of support already raised in the summons. The further objections concerning clarity raised by the board during the oral proceedings did not go beyond the framework of the previous discussions, which were defined by the underlying claim deficiencies. The board noted that if the appellant's argument that identifying newly introduced problems amounted to exceptional circumstances were correct, this would mean that the appellant would have to be given repeated opportunities to file amended claims until no new problems were introduced, which would be at odds with the primary object of the appeal proceedings of a judicial review of the impugned decision (Art. 12(2) RPBA). See also T 975/20.

Likewise in T 1880/20 (ex parte) the board did not recognise exceptional circumstances in the following sequence: indication of the basis for claimed subject-matter only during the oral proceedings, conclusion of the board that the requirements of Art. 123(2) EPC were still not met, filing of amended claim request 6.

The board in T 2578/19 observed that filing amended claims always entailed the possibility that the proposed amendments might lead to new objections, in particular under Art. 84 EPC or Art. 123(2) EPC. In addition, objections to features introduced at a late stage and first at issue on appeal were – just like objections to the admissibility of late-filed requests – necessarily new. That meant that treating such objections as creating exceptional circumstances within the meaning of Art. 13(2) RPBA would undermine the spirit and purpose of the provisions on admissibility in Art. 12 and 13 RPBA, which prescribed that late-filed amendments were to be admitted on appeal only in exceptional cases. See also T 2214/15 (concerning an objection under Art. 123(2) EPC newly raised by the board to amendments made in auxiliary request 2).

In T 2256/17 the board took a different approach in a case where it had raised a new inventive step objection in its communication under Art. 15(1) RPBA. In response to this communication, the appellant (applicant) had filed further requests. During the oral proceedings, the board raised objections of lack of clarity against these further requests for the first time. In response, the appellant filed another set of claims (sole request) with the aim of overcoming these new objections. In the board's view, these were exceptional circumstances within the meaning of Art. 13(2) RPBA.