b) Preliminary opinion of the board maintaining objections or arguments raised by examining division 

In T 2778/17 the appellant (applicant) argued that a reaction in response to the provisional opinion of the board should be possible. For reasons of procedural economy it would not be expedient to file beforehand a plurality of auxiliary requests without knowledge of the opinion of the board. The board did not agree. It recalled the basic principle of the third level of the convergent approach that, at this stage of the appeal proceedings, amendments to a party's appeal case were not to be taken into consideration and that only a limited exception was provided for. The board could not see any exceptional circumstances justified with cogent reasons by the appellant. The appellant had merely stated that it considered it desirable and justified to amend its requests after having been provided with the board's provisional opinion on the merits of the case. It had not argued that the clarity objection was newly raised by the board or that it had not been possible to file the amended claims with the statement of grounds of appeal.

In T 689/15 the application was refused because, inter alia, the subject-matter of claim 1 of the then first auxiliary request lacked inventive step over the combined disclosures of documents D1 and D2. The board's assessment of inventive step in its preliminary opinion was based on the same documents and the board identified the same closest prior art (D1). However, the board identified only one difference with respect to D1, whereas the examining division had identified two differences. As a result, the board defined an objective technical problem which was not as broad as the one defined by the examining division. But the board confirmed the examining division's assessment that the person skilled in the art would implement the teaching of D2 in the method known from D1. The board was therefore not convinced that the arguments set out in its preliminary opinion differed from the arguments set out in the decision under appeal to such an extent that they presented a whole new line of reasoning. Hence, the board saw no exceptional circumstances which would justify admitting the auxiliary request into the proceedings.

Similarly, in T 2279/16 the combination of documents on which the board based its inventive-step objection in its preliminary opinion was exactly the same as the one which had led to the refusal of the application, and hence this was not a new objection from the board (even if the board's reasoning differed in certain details). The board saw no exceptional circumstances.

See also the following cases, where, in the board's view, its preliminary opinion did not raise a new objection which could have justified the filing of new requests: T 14/20 (no new line of argument in communication under Art. 15(1) RPBA 2020, as the examining division's assessment already based on the same understanding of the features and definitions at issue), T 1080/15 (objection raised by the board was a mere development of the objection originally raised by the examining division), T 597/16 (board's observations consistent with the decision under appeal; amendment unrelated to board's observation on clarity), T 2486/16 (board, while departing in some respects from the reasoning of the examining division on inventive step, reached the same conclusion), T 1294/16 (board cited D7 as evidence that an argument of the examining division was based on common general knowledge, but exceptional circumstances acknowledged for other reasons; see chapter V.A.4.5.5j)), T 167/17 (board merely explained, in detail and by highlighting all relevant aspects, why it was of the preliminary opinion that the examining division had not erred in finding that the main request did not meet the requirements of Art. 76(1) EPC).