d) Relevance of new lines of attack for assessment of patentability – not a sufficient justification 

In T 1203/16 the appellant (opponent) submitted, in reply to the preliminary opinion of the board, a new objection of insufficiency of disclosure and a new line of attack against novelty and inventive step of the subject-matter of claim 1 of the patent as granted, based on a document considered in opposition. In addition, five days before the oral proceedings the appellant filed a new document and argued against novelty of the subject-matter of granted claim 1. As justification for these late amendments to its case, the appellant (opponent) merely argued that the new lines of attack were relevant for assessing the patentability of the opposed patent and avoiding maintenance of a patent not fulfilling the necessary requirements of the EPC. The board emphasised that such a justification was not sufficient, as this would always be the case in opposition proceedings from the point of view of the opponent. These new lines of attack could and should have been filed before. Furthermore, the board held that waiting until receiving the preliminary opinion of the board pursuant to Art. 15(1) RPBA 2007 before submitting further evidence and lines of attack was totally contrary to a leading principle of the Rules of Procedure, namely that on appeal the case of the parties should be complete at a very early stage. Moreover, the necessary adjournment, should the new document be admitted, would be contrary to Art. 15(6) RPBA 2020. The board therefore decided in exercise of its discretion not to admit the new lines of attack and the corresponding document into the proceedings pursuant to Art. 12(4) RPBA 2007, Art. 13(1) RPBA 2020 and Art. 13(1) and (3) RPBA 2007.