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Under R. 137(3) EPC (former R. 86(3) EPC 1973), after receipt of the first communication from the examining division, the applicant may, of his own volition, amend once the description, claims and drawings, provided that the amendment is filed at the same time as the reply to the communication. No further amendment may be made without the consent of the examining division.
In T 63/86 (OJ 1988, 224) the board noted that the wording of the whole of R. 86(3) EPC 1973 pointed specifically to the examining division. In cases of minor amendments filed during the appeal, it might be appropriate for a board of appeal to exercise the discretion of the examining division under R. 86(3) EPC 1973. However, where substantial amendments had been proposed which required a substantial further examination in relation to both the formal and substantive requirements of the Convention, such further examination should be carried out, if at all, by the examining division as the first instance, only after the examining division had itself exercised its discretion under R. 86(3) EPC 1973 (T 47/90, OJ 1991, 486; T 1/92, OJ 1993, 685; T 296/86, T 341/86, T 347/86, T 501/88, T 531/88, T 317/89 and T 184/91).
In T 1051/96 the appellants re-introduced on appeal matter which, having been objected to under Art. 82 EPC 1973 by the examining division, had not been further prosecuted by them. The board held that the applicant could not be allowed, on appeal from a decision refusing the restricted claim on some other ground, such as lack of inventive step, to put forward a request which reverted to the broader claim and thus re‑introduced matter open to the objection of lack of unity. It decided that the admission of this request into the proceedings should be refused in the exercise of the board's discretion under R. 86(3) EPC 1973 (see T 63/86, OJ 1988, 224). The board noted that this was because, as was clear from the Convention, in particular Art. 96 EPC 1973, and had been stated in G 10/93 (OJ 1995, 172), it was the task of the examining division, and not that of the board of appeal, to carry out a full examination as to patentability requirements. Proceedings before the boards of appeal in ex-parte cases were primarily concerned with examining the contested decision.