Cogent reasons for late-filed auxiliary requests in appeal proceedings

If all objections dealt with in a communication of the Board of Appeal were already subject of the previous proceedings, this communication cannot justify the existence of exceptional circumstances within the meaning of Art 13 (2) RPBA 2020, which would allow a delayed filing of auxiliary requests. In particular, the fact that the Board of Appeal expressed a preliminary opinion different from the opinion of the opposition division in the contested decision in the communication attached to the summons to the oral proceedings does not constitute an exceptional circumstance within the meaning of Art 13 (2) RPBA 2020 which could justify the late filing of the auxiliary request. The appeal proceedings serve the purpose of reviewing the contested decision and the complainant must therefore at least expect the possibility that the Board of Appeal will arrive at an opinion different from that expressed by the opposition division in the contested decision (EPO Board of Appeal 13/07/2020, T 1187/16).