In T 1105/98
the auxiliary request was not submitted until the start of oral proceedings before the board. The board took the view that such a request could be refused as late-filed under R. 71a(2) EPC 1973
(now R. 116 EPC
), unless it was to be admitted because the subject of the proceedings had changed. Discretion under R. 71a(2) EPC 1973
could be exercised only if no such change had occurred. In doing so, the board had to make sure that the amended claims fulfilled the formal requirements and appeared likely to succeed, bearing in mind the time needed to ascertain this but also the right to be heard. These conditions were not fulfilled if a further search was needed, so that either the oral proceedings had to be postponed or the matter remitted to the department of first instance for further prosecution. The board in T 681/02
adopted the view taken in T 1105/98
, where the board had held that, if the said request was intended as a response to the board's preliminary opinion in preparation for the oral proceedings, it could have been submitted prior to the time limit specified in that opinion, that is to say, up to one month before the oral proceedings. Claim 1 according to the auxiliary request differed from Claim 1 as granted by virtue of an additionally incorporated feature. The general assumption therefore had to be made that this feature had not yet been searched.