T 1224/22 - Exceptional circumstances, but too late

Key points

• "the proprietor presented a first line of reasoning in favour of [admitting the auxiliary request], which is based on the fact that objection (c) was first raised in the Board's preliminary opinion. This amounted to exceptional circumstances which justified the filing of Auxiliary Request 1, which clearly overcame this objection, and, additionally, also overcame all other objections."
• "It is established jurisprudence that objections newly raised, by the Board, may constitute "exceptional circumstances" within the meaning of Article 13(2) RPBA "
• "They [the party, the Board uses the singular they] should thus explain why the circumstances had the direct result of preventing it from filing the amendment at an earlier stage (see T 1707/17, reason 2.4 and T 2486/16, reasons 6.5.5 and 6.5.6, and Case Law of the Boards of Appeal, 10th edition, V.A.4.5.4b). Expressing the temporal aspect in other words, they should persuade the Board that the amendment was filed within a reasonable time after the circumstances occurred."
• "After the submission of a request within a reasonable time after the occurrence of the relevant circumstances, any later filed requests would require exceptional circumstances of their own. In other words: the single occurrence of exceptional circumstances cannot justify a repeated filing of requests for an indefinite time span."
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• Separately, the decision was issued about four months after the oral proceedings, and the file contains a communication under Art. 15(9) RPBA. 

EPO 

The link to the decision can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t221224eu1