c) New request in response to preliminary opinion of the board clarifying objections – admitted 

In T 32/16, with regard to the respondent's reasons for submitting the request in issue only in response to the board's preliminary opinion (Art. 13(1), third sentence, RPBA 2020) and its justification for this amendment to its appeal case (Art. 13(1), first sentence, RPBA 2020), the board highlighted the special circumstances of the case in hand, where the board's communication had crystallised for the first time what the board itself had deduced to be the relevant elements of the appellant's lengthy arguments concerning its objections under Art. 100(c) EPC. Although the appellant had stated that its set of arguments was always supposed to have been understood in the way the board had deduced, the board took the view that its statement could be understood as having identified the salient argument for the first time. In the context of the very special circumstances of the case, the board accepted the respondent's reasons for submitting the (now) main request at such a late stage. The board also noted that the respondent's amended request had been submitted on the day it received the board's preliminary opinion. It had thus responded without delay to the objections once these had been identified. Regarding the criterion stated in Art. 13(1), last sentence, RPBA 2020 as to whether the respondent had demonstrated that the amendment prima facie overcame the issues raised by the appellant or by the board and did not give rise to new objections, the board noted that the main request directly addressed the objections of added subject-matter. In its written response, the respondent had also stated from where the amendment was taken (Art. 12(4), second sentence, RPBA 2020). The board noted that the introduced terminology was an explicit recitation of the language used in the application as filed. Demonstration of how these amendments overcame the objection in this particular case, where the lacking features as such had at least already been identified by the appellant, was thus self-evident in the amendments made. Moreover, the amendments were not complex (Art. 13(1) RPBA 2007; Art. 13(1), second sentence, RPBA 2020, referring to Art. 12(4) RPBA 2020) in any sense, nor had this been argued to be the case.