k) Fleshing out objections not adequately substantiated in the grounds of appeal or reply 

In T 2253/16 the board found that the appellant's (opponent's) submissions in its grounds of appeal in support of its contention that D4 was novelty-destroying were not adequately substantiated and therefore could not be considered (Art. 12(3) RPBA 2020 and Art. 12(4) RPBA 2007, which was applicable under Art. 25(2) RPBA 2020). In particular, there was no analysis of D4 showing where the appellant considered which claim features to have been disclosed. At the oral proceedings, the appellant wanted to present the case on D4 it had made in the opposition proceedings but not included in its grounds of appeal. However, the board considered that fleshing out its incomplete appeal case in this way would amount to amending it. Since the appellant had not cited any exceptional circumstances justifying such an amendment, the submissions were disregarded under Art. 13(2) RPBA 2020.

In T 1217/17 the board decided to disregard several lines of argument merely mentioned but not adequately substantiated in the reply to the appeal. At the oral proceedings, the respondent (opponent) announced that it would be "expanding" on these arguments. It contended that this did not amount to amending its case within the meaning of Art. 13(1) RPBA 2020; it was instead elaborating on arguments already made in its reply and based on citations already produced, which was admissible at any stage of the appeal proceedings. The board found that, for some of these lines of argument, no supporting case had been made in the reply, which merely referred to arguments put forward in the opposition proceedings, so any submissions at the oral proceedings would have to be regarded as forming an entirely new appeal case. As to the other lines of argument, the board observed that the respondent's reply did not set out a logical chain of arguments as regards lack of inventive step, so any submissions on this point too would amount to a change in the substance of its appeal case. The announced submissions were not merely new arguments but also new facts, e.g. the features analysis missing from the reply and the detailing of the specific passages in the adduced evidence that the respondent regarded as destroying the novelty of claim 1.

For a further case where the board held that an unsubstantiated objection (here: mere reference to the notice of opposition) was not part of the appeal proceedings and the later substantiation therefore an amendment within the meaning of Art. 13 RPBA 2020, see T 2200/17. See also T 329/16.