i) Change in board's preliminary opinion 

In T 752/16 the board's revised preliminary opinion issued in a second communication under Art. 15(1) RPBA 2020 had been formed in the light of objections and lines of argument already put forward by the appellant in its statement of grounds of appeal. The board considered that it was irrelevant for the purposes of Art. 13(2) RPBA 2020 whether the preliminary opinion in its communication under Art. 15(1) RPBA 2020 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. The board observed in this connection that the main purpose of communicating a preliminary opinion under Art. 15(1) RPBA 2020 was to define the scope of the oral proceedings and that it was a procedural measure designed to make it easier for the parties to prepare for them efficiently, not an "invitation" to make further amendments (see e.g. T 1459/11). Patent proprietors were not entitled to hold back on making amendments in response to an opponent's objections until being confronted with an unfavourable preliminary opinion of the board or realising that the board was not going to endorse their position and arguments (see e.g. T 136/16, T 2072/16).

In T 995/18 too, the board held that it was irrelevant for the purposes of Art. 13(2) RPBA 2020 whether it departed at the oral proceedings from its preliminary opinion in the communication under Art. 15(1) RPBA 2020. Each party to appeal proceedings had to present its own case at the outset – if necessary, by responding to the case made by the opposing party immediately – rather than waiting until the board confronted it with an unfavourable opinion. Changing an opinion expressly referred to as preliminary in the light of the oral discussion of arguments that were all already known from the written proceedings could not serve as justification for the purposes of Art. 13(2) RPBA 2020. The board nevertheless admitted the auxiliary request filed at the oral proceedings on the basis that it did not regard it as an amendment within the meaning of Art. 13(2) RPBA 2020 (see chapter V.A.4.2.2d)(i) above).