2.3.7 Change of provisional opinion

In T 68/94 the appellant submitted that the opposition division had violated Art. 113 EPC by changing its provisional opinion after the oral proceedings without giving the appellants an opportunity to comment on the grounds on which the contested decision was based. The board pointed out that provisional opinions were never binding. The purpose of oral proceedings was to summarise and discuss the parties' arguments. All arguments in the case had been known to both parties.

In T 1824/15, the board held that the members of an examining division were free to change their minds at any point in the procedure, including during oral proceedings, as long as the requirements of Art. 113(1) EPC were fulfilled.