4.7. Communication of a board of appeal

The purpose of a communication of a board of appeal pursuant to Art. 15(1) RPBA 2007 is to prepare the oral proceedings; it is not an invitation to the parties to make further submissions or to file further requests (T 1459/11 and T 1862/12).

In T 1168/08, the board stated that the appellants' justification for the late filing of the new requests, namely that they had been filed in reaction to the board's communication, was not acceptable here, because the argumentation in support of the board's preliminary opinion that the claimed subject-matter had no basis in the application as originally filed and lacked novelty corresponded in substance to the reasoning of the respondent in reply to the grounds of appeal. A board communication under Art. 15(1) RPBA 2007 is intended as guidance for the oral proceedings. It helps the parties to focus their argumentation on issues that the board considers crucial for reaching its decision. Where the board's communication contains a preliminary opinion based solely on the issues raised by the parties and their arguments, that communication cannot be taken as a justification for submitting new requests that the parties could have filed earlier (see also T 253/10, T 582/12).

In T 30/15 the appellant argued that the board's preliminary opinion had raised a new objection to the sufficiency of the description. That was why it had filed a new document, doing so as soon as possible. The board disagreed: the cited passage of its preliminary opinion did not contain any new objection but merely summarised those already set out in the decision under appeal. Filing the new document in response was therefore not justified.

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