In T 246/08
the examining division declared in a fax that no consent was given to further amendments under R. 86(3) EPC 1973
. A similar declaration, stating that no further amendments were consented to, was reiterated in the minutes of the oral proceedings and in a subsequent communication, although the minutes contained a new argument. The board stated that it is the established jurisprudence of the boards of appeal that the power of the examining division to consent to amendments under R. 137(3) EPC
is a discretionary power that has to be exercised after considering all the relevant factors of the specific case and balance in particular the applicant's interest in obtaining an adequate protection for his invention and the EPO's interest in bringing the examination to a close in an effective and speedy way. Moreover, the exercise of a discretionary power has to be reasoned, otherwise it would be arbitrary. Thus, in T 872/90
the then deciding board held that neither the remark "the applicant has already once amended the claim" nor a reference to R. 86(3) EPC 1973
could be considered as reasoning, because such statements solely constituted a reference to the power given to the examining division by the above rule. It followed that a refusal of consent to amend made in advance of any amendment being submitted could not be a reasonable exercise of discretion pursuant to R. 137(3) EPC
. Indeed in the judgement of the board it was ipso facto a substantial procedural violation since it risked deterring an applicant from making an amendment which could not reasonably have been forbidden. The board made it clear that there was a world of difference between a pre-emptive formal declaration that no amendments would be admitted and advising the applicant that a discretionary power to permit or refuse amendment exists and would be exercised in the event that amendments were submitted.