g) Importance of a direct response to the other party's written submissions 

In several decisions, the boards have stressed the importance of a direct response to the other party's written submissions, in particular to the reply to the appeal. It is incumbent upon each party to submit all objections it considers relevant at the earliest possible stage in the proceedings (see, for example, T 2271/17).

In T 1756/16 the board considered that the fact that auxiliary request 1, initially filed with the reply, had been slightly amended again in response to its communication under Art. 15(1) RPBA did not justify the new objection (lack of inventive step) subsequently filed by the appellant, because the new auxiliary request 1 was similar in content to the old one and the appellant had already had an opportunity to respond to the filing of that older request. In this connection, the board observed that the new RPBA instructed the boards not to send a summons in inter partes proceedings any earlier than two months after receipt of the reply (Art. 15(1) RPBA, only one month since 1 January 2024, see OJ 2023, A103). The aim of this timing was to give parties an opportunity to respond to another party's written reply.

In T 2843/19 too, the board found that the appellant had not submitted any cogent reasons for not providing its answer to the arguments in the reply to the appeal in direct response to it, but instead only shortly before the oral proceedings. As the board emphasised, the RPBA required that the parties make their submissions in the proceedings in good enough time to enable the board to take them into account when drafting the summons. Where the submissions were intended to counter lines of attack or auxiliary requests that had not already been considered in the contested decision but were submitted by the respondent in its reply to the appeal, filing a rejoinder in response to that reply was the appropriate course of action for the appellant. The board rejected the argument that it was unreasonable to have to present a whole chain of successive lines of argument for every position the board might conceivably take. In inter partes appeal proceedings, the parties had a duty to facilitate due and swift conduct of the proceedings, for reasons of fairness towards the other party, but also in order to bring the proceedings to a close within a reasonable period of time.

In T 2271/17 it was not until the oral proceedings that the appellant (opponent) raised a new inventive step objection against auxiliary request 3 which had been filed already with the reply to the grounds of appeal. The board pointed out that, independently of whether the board's opinion (which had triggered the new submission) was foreseeable, it was the responsibility of the appellant to prepare for the possibility that the board may decide against it in relation to a specific objection, and accordingly, to submit all objections it considered relevant at the earliest possible stage in the proceedings.