The EPO must decide upon the European patent application or the European patent only in the text submitted and agreed by the applicant or proprietor and last used as a basis for the proceedings. Consequently, for example, an amended version proposed by the Examining or Opposition Division (see C-V, 1.1, D-VI, 4.2 and D-VI, 7.2.1) may only be adopted as a basis for the decision if it has been approved by the applicant or proprietor.
In the case of one or more auxiliary requests directed to alternative texts for grant or maintenance of a patent, every such request qualifies as a text submitted or agreed by the applicant or proprietor within the meaning of Art. 113(2) (see T 234/86), and therefore must be dealt with in the order indicated or agreed to by the applicant or proprietor, up to and including the highest-ranking allowable request, if any.
When considering such requests it is essential that they are treated in the correct order. Thus, for instance, if the only allowable request is an auxiliary request, but is accompanied by a higher auxiliary request for oral proceedings (e.g. a request that oral proceedings be held if the main request cannot be granted) then a communication under Rule 71(3) could not be issued on the basis of the allowable request, but instead oral proceedings in accordance with the higher request would have to be appointed, or a further communication under Rule 71(1) issued (see E-IX, 5.3). If the order of the requests is not clear from the applicant’s submissions, then it would be necessary to contact the applicant to clarify the situation before proceeding.