i) Further cases in which the new submissions should have been filed earlier 

(i) No right to raise objections against amendments to the patent under Article 123(2) and 84 EPC at any time

In T 482/18 it was not until the oral proceedings on appeal that the appellant (opponent) raised objections under Art. 123(2) and 84 EPC to a term in the claims according to the main request (identical to the auxiliary request on the basis of which the opposition division had maintained the patent). It had not contested the feature in question under Art. 123(2) EPC before the opposition division, which had rejected a clarity objection to this feature. The board dismissed the opponent's arguments in support of admitting this amendment to its appeal case. In particular, it could see no basis for inferring from Art. 114 EPC 1973 (identical to Art. 114 EPC) any essentially absolute right to raise such objections in any circumstances and at any time or even any duty of the board of the kind asserted by the opponent to investigate of its own motion.

(ii) High number of auxiliary requests generally does not justify late submission 

In T 2964/18 the board rejected the appellant's argument that its new inventive-step objections raised only at the oral proceedings should be admitted in view of the high number of auxiliary requests. In the board's view, in the current case, the number of auxiliary requests (namely seventeen) filed with the reply to the appeal was not excessive, especially in view of the numerous inventive-step objections raised by the appellant in the statement of grounds of appeal. In fact, seven documents had been indicated by the appellant as documents possibly representing the closest prior art.

Likewise in T 2391/18, contrary to the appellant’s opinion, the board did not see any insurmountable or unreasonable task in dealing with fifteen auxiliary requests which had been filed in a timely manner (with the reply to the statement of grounds of appeal) and comprised a limited number of well-defined amendments, which were moreover repeated and combined in the different auxiliary requests – including the mere deletion of granted claims in some cases. Thus, the lines of attack on novelty and inventive step of the third auxiliary request (now main request) could and should have been raised in a timely response to their filing.

(iii) Late-filed objection that would have equally applied to earlier requests 

In T 1771/17 the appellant (opponent) raised a novelty objection against claim 1 of auxiliary request 2B, which had been filed as a legitimate response to the board's preliminary opinion and so admitted. The board noted that auxiliary request 2B was based on an earlier request already on file and against which no objection had been raised by the appellant in the written proceedings. Since the new novelty objection would have equally applied to the earlier request and the appellant had not provided any cogent reasons why it had not been filed earlier, the board decided not to take it into account.

(iv) New objection or argument based on finding concerning a divisional application 

In T 1266/19 the board recalled that it was established case law that proceedings against a parent and a divisional application are separate independent proceedings. Thus, the facts, evidence, and submissions made or filed in these proceedings were not automatically part of the parent procedure and vice versa. No exceptional circumstances in the sense of Art. 13(2) RPBA could be inferred from decisions relating to a different case, or arguments submitted therein. See also chapters II.F.4.1.1 and II.F.4.1.5.