4.2. Rejection in advance of further request by examining division

According to T 1105/96 (OJ 1998, 249), an applicant had a right both to file one or more auxiliary requests in addition to a main request, and to maintain all such requests even if the examining division communicated its view that all except the last auxiliary request were inadmissible or unallowable, and he was then entitled to a reasoned appealable decision in respect of rejection of each such request. Where an examining division had communicated its view that a further request in the form of an amended text of a claim would be allowable, the rejection in advance of such a further request unless all preceding requests were abandoned was an unlawful exercise of discretion under R. 86(3) EPC 1973 (R. 137(3) EPC) and a substantial procedural violation under R. 67 EPC 1973 (R. 103 EPC).

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