In G 6/95 (OJ 1996, 649) the Enlarged Board of Appeal held that the mandatory procedural requirements in R. 71a(1) EPC 1973 (R. 116(1) EPC) did not apply to the boards of appeal. However, in T 97/94 (OJ 1998, 467) the board ruled that if a board decided to send the parties a communication under R. 71a(1) EPC 1973, the parties were obliged to comply with it, particularly as regards the deadline for reply. R. 71a(1) EPC 1973 was thus binding on the parties.
The board in T 1105/98 stated that R. 71a(2) EPC 1973 was applicable to proceedings before the boards of appeal. In the case in question, the patent proprietor's auxiliary request with amended claims was presented at the start of the oral proceedings, i.e. after expiry of the time limit set in the summons. The board examined whether the auxiliary request could be refused as being out of time on the basis of R. 71a(2) EPC 1973, and decided that this provision also applied to the late submission of amended claims by way of an auxiliary request, even if the summons to oral proceedings had not contained an invitation to submit them. If the patent proprietor only submitted amended claims at the oral proceedings, the board could use its discretion to disregard them, particularly if the facts of the case had remained the same and further investigation was necessary to assess the lack of patentability alleged as grounds for opposition (see also T 681/02, T 494/04).
In T 401/02 the board of appeal held that the admission of new requests on the basis of amended patent claims which are submitted by the patent proprietor only at the oral proceedings despite a final date having been set in the summons for the submission of such requests is distinctly limited in opposition appeal proceedings by R. 71a(2) EPC 1973. The admission of the request would normally have to be refused if the board or one of the parties to the appeal proceedings could not be expected to study the amended claims without postponement of the oral proceedings.