k) Ex officio examination of Art. 123(2) EPC 

In T 996/18, the board held that claims which the patent proprietor had amended by adding features from the description but which had not been examined in the opposition proceedings should be examined ex officio on appeal for compliance with Art. 123(2) EPC (Art. 114(1) EPC, R. 100(1) EPC). Otherwise, subject-matter might ultimately be allowed that had been determined solely by the parties, without ever having been examined by the EPO. In this case, the board had raised the objections under Art. 123(2) EPC for the first time during the oral proceedings. To uphold the right to be heard (Art. 113(1) EPC) and the principle of equality of arms, the appellant was given the opportunity to comment on the objections and to overcome them by filing a new auxiliary request.