c) Preliminary opinion of the board containing objections or arguments that were already part of the proceedings 

In T 1187/16 the board held that, where all objections addressed in a board's communication had already been raised earlier on in the proceedings, the communication could not be regarded as creating exceptional circumstances within the meaning of Art. 13(2) RPBA 2020. The objections in this case had already been set out in detail, in particular in the reply filed by the respondent (opponent). The board thus concluded that the appellant had already had ample opportunity before notification of the summons to oral proceedings to respond to the existing objections by filing precautionary auxiliary requests. Considerations of procedural economy and the fact that the appellant had filed the auxiliary request more than one month before the oral proceedings were irrelevant in such circumstances.

Along similar lines, the board in T 1328/18 (citing T 2271/18) noted that the unfavourable preliminary opinion, which contained objections already raised in the opposition phase, did not qualify as an exceptional circumstance.

In T 2775/17 the respondent argued that it had only been on reading the communication with the board's preliminary opinion that it had been able to understand the tenor of the objections to its auxiliary request 2. The board rejected this argument, finding that its communication had not introduced any new aspect.

In T 1891/16 the clarity objection raised in the board's communication to claim 1 of the fourth auxiliary request had been explicitly submitted in the opponent's reply only in relation to claim 1 of the first auxiliary request. However, the same contested feature was also present, unchanged, in the fourth request. Since, in the board's view, this was readily apparent to the patent proprietor, it could have filed the fifth auxiliary request as an immediate response to the opponent's reply instead of waiting for the board's summons.

In T 172/17 the board noted that it lay in the very nature of appeal proceedings that a board might reach a different conclusion from the department of first instance on an issue under dispute. This could not be regarded as surprising for the respondent from an objective point of view. See also the cases in V.A.4.5.6h) "Board's opinion different from that of opposition division".

For further cases where the board did not accept the argument that the amendment was a reaction to its preliminary opinion, see e.g. T 1483/16, T 276/17, T 1707/16 and T 1717/17.