i) Objections not a reaction to unexpected developments in the appeal proceedings – not admitted 

In T 140/15 the appellant (opponent) first filed an inventive-step objection at the oral proceedings. The board refused to admit it (Art. 13(1) RPBA 2020; Art. 13(2) RPBA 2020 was not yet applicable) because it could see no convincing reason for the late amendment to the appellant's case. That a board might ultimately be left unconvinced by a party's case to date was a foreseeable possibility and not a new – and still less unexpected – development in the proceedings. The board also held that the need to address a new objection at an extremely late stage in the proceedings was not in keeping with the need for procedural economy. It made no difference that an objection based on the same documents but in reverse order had been raised earlier in the proceedings; this was still a new objection and its discussion would not necessarily take a similar course to that of the earlier one. However, see also T 310/18, summarised in chapter V.A.4.4.6b) above, in which the board admitted an objection based on a combination of the same documents as before but in reverse order.

In T 1014/17 the appellant (opponent) had not raised its new clarity objection to the main request until after the oral proceedings had been arranged. The main request had already been discussed at the oral proceedings before the opposition division, including in terms of its clarity, but the clarity objection now at issue had not been raised then. Nor had it been raised in the grounds of appeal, even though other clarity objections had been submitted there. The board considered that, in the circumstances, the appellant had already had ample opportunity to revise its position on the clarity of claim 1 and raise appropriate objections, and could have done so in its grounds of appeal at the latest. What was more, it had had a responsibility to do so in view of what was required for properly conducted proceedings, including the duty on the parties to file all facts, evidence, arguments and requests as early and as completely as possible (Art. 12(2) RPBA 2020), and also for reasons of fairness towards the respondent (patent proprietor), who had to be able to see as early as possible to what extent its patent was being challenged and on what grounds. The board refused to admit the objection under Art. 13(1) RPBA 2020 and Art. 13(1) and (3) RPBA 2007 (Art. 25(3) RPBA 2020).

In T 329/16 the board referred to Art. 12(3) RPBA 2020 and concluded that the onus had been on the opponent's to make a substantiated case in support of its inventive-step objections in its reply, even though the opposition decision had found in its decision that the subject-matter of claim 1 of auxiliary request 1 lacked novelty. Given that the patent proprietor had made a detailed case in support of the subject-matter's novelty in its grounds of appeal, the opponent could not rely on the board's reaching the same conclusion as the opposition division. Since the opponent only substantiated its new objections at the oral proceedings, the board refused to admit them under Art. 13(1) RPBA 2020.