5.10.3 New arguments and lines of attack admitted

During the oral proceedings in T 55/11, when discussing inventive step of granted claims 1 and 20 starting from document D1 and taking into account document D13, the appellant (opponent) argued for the first time that the subject-matter of said claims also lacked an inventive step starting from document D13 and taking into account document D1. The board admitted the new arguments. Documents D1 and D13 had both been before the opposition division and had been extensively discussed throughout the proceedings.

In T 161/09 the board decided to use its discretionary power to admit the appellants' first line of argument to the proceedings, in support of their objection of lack of inventive step, despite these submissions having been made only during the oral proceedings. In the view of the board these submissions did not alter the legal and factual framework of the proceedings. In T 112/13, too, the board admitted a more detailed and expanded line of argument at the oral proceedings under Art. 13(1) RPBA 2007 because it did not substantially amend the case as set out in its statement setting out the grounds of appeal.

In T 524/12 the case made by the appellant (opponent) was an extension of the case it had made before the opposition division. Since, in essence, similar features were discussed, and the lines of argument put forward were largely those that had already been discussed, the appellant was not making a substantially new case, but was simply basing the case it had made in support of its objection before the opposition division partly on new arguments. Art. 12(4) RPBA 2007 did not provide for not admitting mere arguments.

See also T 704/06 (ex parte), T 1941/10, T 216/10 and T 174/12, where the late-filed arguments were also admitted into the proceedings. See also T 1348/11.