b) Absence of opponent from oral proceedings 

In T 1949/09 the board refused to admit test results filed by the proprietor (appellant) before the oral proceedings. Apart from the unjustified, late filing, the tests raised in the board's view a number of questions about their significance, which could not be answered without an adjournment of the proceedings. Art. 15(3) RPBA 2007 does not go so far as to nullify Art. 113(1) EPC. On that basis, the respondent, who chose not to attend the oral proceedings, could rely on the procedural provisions, namely that the decision would be made on the basis of the written case within the meaning of Art. 12 RPBA 2007 and that no significant amendment of the case would be admitted which would go beyond what is provided by Art. 13 RPBA 2007.

In T 470/04, the appellant patentee filed an amended set of 15 claims during the oral proceedings, which were not attended by the respondent (opponent). Since the amended set of claims was based on a combination of claims already on file, had been filed as a response to objections raised by the board during the oral proceedings, did not modify the main point of discussion defined by the decision under appeal and by the statement of the grounds of appeal, i.e. lack of inventive step, and could be easily dealt with by the board at the oral proceedings, the board concluded that the requests were admissible under the circumstances.

In T 2471/10 the respondents could have reasonably expected amendments like those made in the claims of the appellant's new request and thus they could not have been taken by surprise. Accordingly, the respondents' absence was no obstacle to admitting the appellant's new request into the proceedings and taking a decision on it.