c) Objections or arguments raised for the first time during oral proceedings 

In T 1561/15 the board held that there were exceptional circumstances within the meaning of Art. 13(2) RPBA 2020 in that it had first objected to an impermissible intermediate generalisation at the oral proceedings and the appellant had demonstrated that the amendment to the claim was a direct response to that objection.

In T 1482/17 the board admitted auxiliary requests filed during the oral proceedings. As regards the requirement that their filing be justified by exceptional circumstances, the board observed that adding another clarifying feature was a direct response to a new line of argument that the board had, of its own motion, raised for the first time during the oral proceedings. This line of argument was a departure from its preliminary opinion that the earlier auxiliary request 1 was allowable; this implied that there was little prospect of the other auxiliary requests being allowable either. In view of this exceptional circumstance, the board considered that, even at this late stage in the proceedings, the patent proprietor was entitled to be given a chance to overcome the newly raised objections.

Similarly, in T 1702/18 the board held that the shift in focus vis-à-vis previous arguments and the resulting change in the preliminary assessment of allowability of the then main request were an unforeseeable and unexpected development to which the respondent (patent proprietor) should be given an opportunity to respond in an appropriate manner. In the board's view the amendments overcame clearly and in a straightforward manner the objection of added subject-matter raised and did not change the substance of the debates concerning the other contentious issues at stake. The board considered the circumstances of this case to be exceptional within the meaning of Art. 13(2) RPBA 2020 and decided to admit the requests at issue into the proceedings.