In T 1254/06
, the board, when exercising its discretion, took into account the complicated procedural situation in which the appellant was. The sets of claims in the main request and auxiliary requests 1 and 2 were not the subject of the decision under appeal and had first been filed by the appellant in the statement of grounds of appeal at the beginning of the second appeal proceedings. In its first decision to refuse, which had been the subject of the first appeal proceedings, the examining division had considered the main request, which differed only negligibly from the main request now at issue, to be incompatible with R. 86(4) EPC 1973
and refused it without a substantive examination. The appellant subsequently filed a divisional application. However, after the board's ruling on the first appeal had made clear that it considered the examination division's objection to be unfounded, the appellant had resumed prosecution of the claims in the main request and auxiliary requests 1 and 2 as part of the parent application.