b) Justified response to new requests in the reply to the appeal 

In T 924/22 the respondent (proprietor) had submitted auxiliary request 5 with the reply to the statement of grounds of appeal. The appellant objected to this request in its rejoinder, which was, in the board's view, the first reasonable opportunity to do so, after the summons but well before the board issued its preliminary opinion. The board held that the appellant (opponent) should be given a fair opportunity to respond to the respondent's requests that they could not foresee when they filed their appeal, even if these requests were those filed already in opposition. This situation represented exceptional circumstances under Art. 13(2) RPBA. The board then applied the criteria of Art. 13(1) RPBA referring to Art. 12(4) to (6) RPBA and found that all three criteria (amendment of the appellant's case should be suitable in regard of the relevant issues, not detrimental to procedural economy and not complex) were met.

For decisions on whether the appellant-opponent has to raise objections against auxiliary requests which were not considered in the appealed decision but raised in the first-instance proceedings as early as in its grounds of appeal, see also chapter V.A.4.3.5c)(ii), in particular T 664/20, in which the board took a different view.