4.5.6 New requests filed – no exceptional circumstances established
In T 428/18 the appellant (applicant) argued that the amended main request, filed during the oral proceedings and attempting to overcome a new objection raised in the board's preliminary opinion, should be admitted because it had not understood the objection until the oral proceedings. However, in the board's view the objection in its communication was sufficient to inform the appellant of its concern. It was then up to the appellant to consider, at the earliest opportunity, whether it was necessary to amend the application and to carefully examine whether there was a basis for any such amendment in the application as filed. For the main request filed with its letter of reply, the appellant had chosen not to address the objection by making an amendment and instead argued that the objected-to features did in fact have a basis in the application as filed. Therefore, the board did not deem the circumstances mentioned by the appellant to be exceptional.