T 0045/22 - Need to submit further request before the OD even if you win (?)

Key points

• The OD found AR 48 to be allowable. Both parties appeal. Let's call AR-48 the default claims (in the sense if both appeals are dismissed, the patent is maintained in amended form with those claims). The default claims are AR-1 in appeal. The proprietor files AR2-6 with the reply to the appeal of the respondent. During the proceedings before the board, the proprietor withdraws the main request - i.e. withdraws its appeal, if I see it correctly. Hence, the default claims are still (A)R-1.
• The Board: " Claim 1 of the first auxiliary request lacks inventive step over D1 alone."
• Is AR-2 admissible? The opponent argues that it should have been filed before the OD.
• The Board: "the Proprietor should indeed have filed the present auxiliary requests then. First, as it was not at all clear at that point that the Opposition Division would find the new request ("48") allowable, the Proprietor should have been aware of the need to file further fallback positions."
• But the proprietor's bet worked and the OD found AR-48 allowable.
• Furthermore the OD could have very well give the proprietor another opportunity to file auxiliary requests during the OD when AR-48 was held unallowable (e.g., AR 47 was held to lack basis under Art. 123(2) (as the OD did), whereas AR-48 fails on novelty). The proprietor may have had a legitimate expectation in that sense. It may have been inappropriate to file auxiliary requests before the OD dealing with novelty when only Article 123(2) had been discussed yet.
• "Second­ly, even if the Proprietor had known (or trusted) that the Opposition Division would have allowed the new request, it should still have filed the requests in view of a likely, or at least possible, appeal by the Opponent and the strict rules on admittance according to the RPBA."
• This is circular reasoning, respectfully. Does the term 'should have filed' in Art. 12(6)(s.2) create an obligation to submit requests that the OD would not have considered, and create an obligation that does not exist in terms of the first instance procedural rules?
• How does this serve justice? How does this contribute to procedural efficiency? 
• The Board could have remitted if AR-2 addressed the inventive step issues of AR-1 over D1 for consideration of, say, inventive step over D2.

EPO 

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

https://www.epo.org/en/boards-of-appeal/decisions/t220045eu1