4.1. Direct rejection of auxiliary request by examining division

In T 488/94, the board stated that before refusing an application in the case of main and auxiliary requests, the Examining Division in accordance with Art. 113(1) EPC 1973 would not only have to communicate its arguments regarding non-allowability of the main request to the applicant, but also regarding non-allowability of the auxiliary request, if the result of the subsequent examination of the auxiliary request was also negative. A "direct" rejection of an auxiliary request without preceding communication of the grounds on which the rejection was based would only comply with the requirements of Art. 113(1) EPC 1973 under rather exceptional circumstances.

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