If during examination proceedings a main and auxiliary requests have been filed (see E-IX, 3) and none of these is allowable, the reasons for the decision to refuse the application pursuant to Art. 97(2) must not be limited to the main request, but must also comprise the reasons for the non-allowability of each auxiliary request. If one of the requests is allowable, the communication pursuant to Rule 71(3) is to be issued on the basis of the (first) allowable request and must be accompanied by an explanation of the reasons why the higher-ranking requests are not allowable (see C-V, 1.1). Should the applicant, in response to the communication pursuant to Rule 71(3), maintain higher-ranking requests which are not allowable, a decision to refuse the application pursuant to Art. 97(2) will normally be issued (see C-V, 4.7 and C-V, 4.6.2); the reasons must set out the grounds for the non-allowability of each request which ranks higher than the allowable request. In respect of the allowable request, the decision to refuse must mention that the applicant has failed to give his approval to it.
Similarly, if in opposition proceedings the proprietor has submitted in addition to his main request one or more auxiliary requests, none of which is allowable, the patent must be revoked and the decision must set out, in respect of each request submitted and maintained by the proprietor, the reasons for not allowing it. Where one of the proprietor's requests directed to the maintenance of the patent in amended form is allowable, an interlocutory decision is to be issued on the basis of the (first) allowable request; it has to set out the reasons why this request meets the requirements of the EPC and, additionally, the reasons why the higher-ranking requests do not.
Insofar as a decision includes the rejection of any of the multiple requests, such decision may not be taken until the applicant or proprietor has been informed, with respect to each of these requests, of the reasons for not allowing them, so that the applicant or proprietor is not deprived of the opportunity to present comments (Art. 113(1) – right to be heard). Similarly, an opportunity to comment must be granted to the opponent(s) with respect to an auxiliary request before it is held allowable by an interlocutory decision (see D-VI, 7.2).
Practical considerations will determine at which point in the decision the auxiliary request is dealt with.