h) Board's opinion different from that of opposition division 

In T 42/17 the board recalled the principles set out in the explanatory remarks on Art. 13(2) RPBA 2020 (in CA/3/19, section VI), and in particular the following: if an appellant submitted that the board had raised an objection for the first time in its communication, it had to explain precisely why this objection was new and did not fall under objections previously raised by the opposition division or the respondent. The issues in question in the case in hand had already been discussed in the first-instance proceedings and had been referred to by the respondent (opponent) in its reply to the grounds of appeal. The appellant (patent proprietor) therefore had to expect that the board might express a provisional opinion that was different from the opposition division's opinion. The appellant did not demonstrate that the board's provisional opinion contained any objection not raised previously.

In T 752/16, in which the board's revised opinion in its second communication under Art. 15(1) RPBA 2020 had been based on objections and lines of argument already put forward by the appellant (opponent) in its statement of grounds of appeal, the board similarly held that it was irrelevant for the purposes of Art. 13(2) RPBA 2020 whether the opinion in its communication diverged from a previous position or differed from the contested decision. Parties to proceedings before the boards always had to reckon with an unfavourable preliminary opinion at any time up to announcement of the decision (confirmed in T 764/16). See also T 1187/16 and T 646/17, in which it was pointed out in this context that the very purpose of appeal proceedings is to review the contested decision.

The board in T 2610/16 likewise refused to accept the line of argument put forward by the appellant (patent proprietor) that the amendment at issue had been made in response to the communication under Art. 15(1) RPBA 2020 and that there had been no need to file it during the opposition proceedings because the patent had been maintained as granted. The board instead pointed out that the objection (included in its communication) had already been raised in the grounds for opposition and reiterated in the grounds of appeal. In these circumstances, that the position it had taken in its communication differed from the contested decision was not a cogent reason justifying an exceptional circumstance within the meaning of Art. 13(2) RPBA 2020.

The board in T 1962/17 followed this case law (citing T 764/16 and T 2610/16). It also remarked that, in doing so, it was even sticking to the practice before the revised RPBA's entry into force on 1 January 2020 (see T 1906/17).

For further instances where the fact that, in its communication under Art. 15(1) RPBA 2020 or at the oral proceedings, the board came to a different conclusion from the opposition division was not considered an exceptional circumstance within the meaning of Art. 13(2) RPBA 2020, see e.g. T 1897/16, T 1422/17, T 1717/17, T 172/17, T 1569/17.