4.4.5 Discretion to admit amended claims at any stage of the appeal proceedings

The board in T 577/97 found that decisions not to admit auxiliary requests ought, in principle, to be limited to exceptional cases in which the filing of the auxiliary requests could be said to amount to an abuse of procedural rights (see also T 148/05). In T 681/02, the board observed that, in the specific case underlying the decision in T 577/97, the auxiliary request had contained a single amendment in the form of a new claim which corresponded to a granted claim with a further restriction. It could therefore be assumed that the subject-matter of the auxiliary request had been searched, so that, in contrast to the case now in hand, it could be examined definitively in the oral proceedings. In some decisions, the boards cite T 577/97 in relation to their discretion to accept amended claims at any stage of the appeal proceedings. In T 1124/04 the board was confronted at a very late stage in the oral proceedings with the filing of further auxiliary requests. According to the appellant, the necessity of further restricting the claimed subject-matter had become apparent during the oral proceedings, in particular because the board considered D2 as the closest prior art. In line with T 577/97, the board held that it has at least the discretion to accept amended claims even at a late stage of the appeal proceedings, thus also during the oral proceedings. Of course, it has to be ascertained that the procedural fairness is not jeopardized by the admission of such late filed claims (T 952/99, T 360/01, T 500/01, T 872/01, T 45/03, T 696/04).

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