g) Objections or arguments which do not go beyond the framework of the earlier discussion 

In T 1317/14 the appellant filed auxiliary request 2 at the oral proceedings and argued that it was admissible under Art. 13(2) RPBA 2020 because it had not previously been aware of the argument the board raised at those proceedings that there was no support for claim 1 of auxiliary request 1. The board, however, considered that this objection had already been apparent from the summons and that there were therefore no exceptional circumstances within the meaning of Art. 13(2) RPBA 2020. It also found that, prima facie, claim 1 of auxiliary request 2 could not overcome the objection under Art. 84 EPC and the inserted amendments did not, prima facie, meet the requirements of Art. 123(2) EPC. It therefore refused to admit the request.

Likewise in T 2214/15, the board held that there were no exceptional circumstances which would justify taking a further amended claim request (auxiliary request 3) into account. Rather, the identification of problems newly introduced when the appellant attempted to solve issues discussed in the proceedings up to that point was to be seen as an ordinary development of the discussion. Contrary to the appellant's submission, in the board's opinion, the present case was a typical case, where a central objection (that of lack of support) had been among the grounds for refusal, was identified and agreed with by the board and was the central topic throughout the appeal proceedings, thus typically not warranting the opportunity to file a further auxiliary request. The board pointed out that the topics of discussion in view of auxiliary request 2 (admitted but rejected as unallowable) did not differ in substance from those identified in the summons. The amendments were unsuccessful attempts at overcoming previously identified issues of clarity and lack of support already raised in the summons. The further objections concerning clarity raised by the board during the oral proceedings did not go beyond the framework of the previous discussions, which were defined by the underlying claim deficiencies. The board noted that if the appellant's argument that identifying newly introduced problems amounted to exceptional circumstances were correct, this would mean that the appellant would have to be given repeated opportunities to file amended claims until no new problems were introduced, which would be at odds with the primary object of the appeal proceedings of a judicial review of the impugned decision (Art. 12(2) RPBA 2020). As regards the objection under Art. 123(2) EPC it had raised during oral proceedings against one of the amendments in auxiliary request 2, the board observed that, given the strict third level of the convergent approach implemented by Art. 13(2) RPBA 2020, identifying an amendment aimed at overcoming an objection raised in the summons as non-compliant with Art. 123(2) EPC could not be considered to be an exceptional circumstance.

In T 1870/15 the appellant argued that the board's claim interpretation at the oral proceedings could not have been anticipated. The board, however, observed that its communication pursuant to Art. 15(1) RPBA 2020 had provided a preliminary assessment of inventive step of the claimed subject-matter over D1 as closest state of the art, which had already been thoroughly discussed in the proceedings before the examining division. The board's claim interpretation at the oral proceedings was merely a further elucidation of its inventive-step assessment which did not have any influence on the determination of the distinguishing features of the claimed subject-matter over document D1 and was entirely consistent with its previously communicated preliminary opinion on this issue. This was regarded by the board as a normal course of events during a discussion at oral proceedings.

The board in T 2539/16 similarly found that there were no exceptional circumstances; the objection it had raised in its opinion issued with the summons did not go beyond the scope of the one raised by the appellant or the facts asserted in support of it. It had thus not raised any brand new issues but at most clarified the arguments made by the appellant on the basis of the facts already asserted

In T 545/19 the board's reasoning given during the oral proceedings differed from the shorter one in its preliminary opinion. But the board held that, this notwithstanding, the respondent had been informed of its preliminary negative opinion on the feature in question and could therefore not have been surprised that it came to a negative finding during the oral proceedings.