e) Issues underlying board's conclusions already raised in the decision under appeal – request not admitted 

In T 1384/16 auxiliary request 17 was filed during the oral proceedings before the board. The appellant (patent proprietor) justified the late filing as a reaction to the board's conclusions that the invention claimed in the main request lacked sufficiency of disclosure and that auxiliary request 8 extended the scope of protection. However, in the board's view, these reasons did not justify such a late filing in the case in hand, as the underlying issues had already been raised in the decision under appeal and/or the communication issued by the board in preparation for the oral proceedings. The appellant should not have waited until there was an outcome on the different issues in the oral proceedings to decide on its line of defence and tailor the claims accordingly. Therefore, taking into account the stage of the appeal proceedings and the need for procedural economy, the board decided not to admit the request into the appeal proceedings (under Art. 13(1), 25 RPBA 2020, Art. 13(2) RPBA 2020 not yet being applicable).