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Case Law of the Boards of Appeal

 
 
1. Main and auxiliary requests - order of requests

In the proceedings before the EPO main and auxiliary requests are allowed (for grant proceedings see e.g. T 79/89, OJ 1992, 283; for opposition proceedings see e.g. T 234/86, OJ 1989, 79). An auxiliary request is a request for amendment which is contingent upon the main request (or preceding auxiliary requests) being held to be unallowable T 153/85 (OJ 1988, 1). It is also a request for amendment covered by R. 86(3) EPC 1973 (now R. 137(3) EPC); Art. 96(2) EPC 1973 and R. 51(2) EPC 1973 (see now Art. 94(3) EPC and R. 71(2) EPC); and, during appeal proceedings, Art. 110(2) EPC 1973 and R. 66(1) EPC 1973 (see R. 100(1) EPC) (T 79/89, OJ 1992, 283). Before a decision can be taken on the basis of an auxiliary request, the main request has to be examined and decided upon (T 484/88). Referring to these decisions, the board in T 169/96 pointed out that, under Art. 113(2) EPC 1973, the EPO was bound to the requests of the applicant or proprietor, and, in the case of main and auxiliary requests, this meant that the EPO was also bound to the order of the requests (see also T 911/06). In T 1439/05 the board added that to avoid misunderstanding, the examining division should clarify the status of the requests before pronouncing its decision at the conclusion of oral proceedings. In T 883/07 the board held that in accordance with generally recognised procedural requirements, albeit not codified specifically in the EPC, once a higher order request was refused that request was off the table and the next request in the order chosen by the requester had to be considered as if it were the sole request.