5.7. Communication of a board of appeal

The purpose of a communication of a board of appeal pursuant to Art. 15(1) RPBA 2007 was to prepare the oral proceedings; it was not an invitation to the parties to make further submissions or to file further requests (T 1459/11 and T 1862/12; see also T 752/16 und T 995/18 which confirm this case law for Art. 15(1) RPBA 2020).

In T 1168/08, the board stated that the appellants' justification for the late filing of the new requests, namely that they had been filed in reaction to the board's communication, was not acceptable here, because the argumentation in support of the board's preliminary opinion corresponded in substance to the reasoning of the respondent in reply to the grounds of appeal. A board communication under Art. 15(1) RPBA 2007 is intended as guidance for the oral proceedings. It helps the parties to focus their argumentation on issues that the board considers crucial for reaching its decision. Where the board's communication contains a preliminary opinion based solely on the issues raised by the parties and their arguments, that communication cannot be taken as a justification for submitting new requests that the parties could have filed earlier (see also T 253/10, T 582/12).

In T 30/15 the appellant argued that the board's preliminary opinion had raised a new objection to the sufficiency of the description. That was why it had filed a new document, doing so as soon as possible. The board disagreed: the cited passage of its preliminary opinion did not contain any new objection but merely summarised those already set out in the decision under appeal. Filing the new document in response was therefore not justified.

In T 598/17 the board did not accept the argument made by the respondent (proprietor) that before the preliminary opinion of the board it had not been clear "in which direction the case would develop". It was the respondent's procedural obligation to react to the grounds of appeal by filing appropriate (auxiliary) requests suitable to overcome the objections raised. In T 101/15 the board likewise underlined that the parties were expected to play an active role and to provide requests and substantive submissions at an early stage. See also T 946/16.

By contrast, the board in T 2111/17 exercised its discretion under Art. 13(1) and (3) RPBA 2007 and admitted an auxiliary request filed in response to its communication because the amendments made were a promising attempt to overcome an objection it had first raised there.

In T 989/15 the board confirmed that the principles established by this case law also applied to a communication under Art. 15(1) RPBA 2020. Where the board's communication contained a preliminary opinion based solely on the issues raised by the parties and their arguments, that communication could not be taken as a justifiable trigger for submitting new requests that the parties could have filed earlier. The board was not persuaded by the appellant's argument that they could not have been expected to file an auxiliary request in reaction to every objection raised by the other parties. Exercising its discretion under Art. 13 RPBA 2007, the board decided not to admit the main request and the first to third auxiliary request, but admitted the fourth auxiliary request.