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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 (R. 137(3) EPC, former R. 86(3) EPC 1973).
In T 229/93 the board found that in the circumstances of the case at issue the examining division should have considered refusing to consent to the amendments pursuant to R. 86(3) EPC 1973, since the filing of such amendments after the expiry of the time limit for answering the first communication of the examining division in the form of a completely retyped description was contrary to the requirement of procedural economy (see T 113/92).
In T 300/89 (OJ 1991, 480) the board pointed out that, even if it were possible for the examiner to envisage amendments which might lead to the grant of a patent, the burden lay with the applicant to propose amendments if he so wished (including various alternatives in the form of auxiliary requests). These amendments could be proposed in the applicant's observations in reply to the first communication (Art. 96(2) EPC 1973) from the examining division, where any objections were raised (T 599/92). It also held that an applicant had a right to request oral proceedings at any time, but if he wished to avoid the risk of an adverse decision being issued without oral proceedings being appointed, he should request oral proceedings at the latest in his observations in reply to such (here, first) communication under Art. 96(2) EPC 1973.