5.10.2 Whether amendment or merely elaboration on existing case

In T 607/10 the board considered that, in deciding whether a new argument has the effect of amending a party's case within the meaning of Art. 13(1) RPBA 2007, it must be established on a case-by-case basis whether the new argument is a departure from, or just a development of, the original arguments filed with the grounds of appeal or the reply thereto. In the case at hand, the new argument could not be seen as merely a further development or elaboration of the opponent's previous position. The new analysis was based on a different choice of the closest prior art. This new argument had therefore to be seen as constituting an amendment to the opponent's case within the meaning of Art. 13(1) RPBA 2007, which might be admitted and considered only at the discretion of the board. In the case at hand, the board, in the exercise of its discretion, decided to admit the new arguments put forward by the opponent. See also T 1348/11.

In T 124/16 the board found that changing the starting point for the line of argument on inventive step amounted to an amendment of the case.