f) Board's opinion based exclusively on earlier party submissions or reasoning of the first-instance division 

In T 908/19 the appellant (opponent) justified the late submission of a further document and new lines of attack only at the oral proceedings by arguing that neither the document nor the objections could have been raised earlier since they were filed in response to the board's preliminary opinion expressed in the annex to the summons. The board could not accept this argument, as its preliminary opinion had been based exclusively on the submissions made by the parties in the grounds of appeal and the reply. Nor had the appellant identified any particular aspect that might be new or surprising to it, but rather appeared motivated by the fact that the board had pronounced itself provisionally in favour of the respondent. See also T 2271/17 (summarised above in chapter V.A.4.5.4g)) and T 1639/18 (ex parte).

As made clear by the board in T 662/22, the fact that it had concurred with the patent proprietor's submission on a particular point did not amount to an exceptional circumstance that could justify the admission of new submissions. Indeed, it was in the nature of inter partes proceedings for a board to find one party's arguments more convincing than those made by the other and, as a result, to reach a conclusion in favour of that first party (in this case at the oral proceedings).

In T 2843/19 the board pointed out that in its communication under Art. 15(1) RPBA it had merely expressed its preliminary opinion that E3 might not be novelty destroying for the subject-matter of granted claim 1. Even if by doing so it had made an assessment of the arguments put forward by the respondent, it had not raised a new issue. This could not be seen as an exceptional circumstance that could justify the late submission of the new objection of lack of inventive step over E3 so soon before the scheduled date for the oral proceedings.

In T 73/20 the appellant argued that D7 contained experimental evidence responding to a statement by the board in its preliminary opinion regarding an alleged technical prejudice. The board disagreed and pointed out that the board’s indications did not give rise to new issues. They merely pointed to the fact that the appellant's new submission was not supported by suitable evidence, as required by Art. 12(3) RPBA. As underlined by the board, a party cannot shift its responsibility under this provision to the board and wait for a negative opinion to complete its case.

See also T 276/17 (D 23 not admitted, because the board's communication had merely addressed an issue already raised by the opposition division and made the connection with one of the appellant's arguments).

See also the decisions summarised in chapter V.A.4.5.5g) "Importance of a direct response to the other party's written submissions" and T 684/18 summarised in chapter V.A.4.5.5h) "Inventive step objection following unsuccessful novelty objection".