4.4.9 Number of auxiliary requests

In T 516/06 the board stated that there is no right to file an endless succession of new requests in substitution for requests found inadmissible or unallowable by the board. Proceedings must come to an end some time. If the contrary was true, oral proceedings could easily be misused, in particular in ex parte proceedings, to test the board's opinion as to what subject matter might be patentable and to tailor claims accordingly. In such cases, while not "holding the pen", the board would nonetheless be the ghost-writer of what was ultimately claimed.

In T 309/09, the board had doubts as to whether the number of auxiliary requests could generally be considered a factor on the basis of which their admission under R. 137(3) EPC could properly be denied outright. Whilst it did not wish to rule out that a large number of auxiliary requests might be a sufficient reason in specific cases, it decided that the question could be left unanswered in the case before it, as in any event six auxiliary requests could not automatically be considered excessive.

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