In examination procedure, the Division will apply the criterion of "clear allowability" in exercising its discretion under Rule 137(3) for treating requests filed late during the proceedings without proper justification (T 153/85).
Late-filed claims will notonly be admitted into the proceedings if they are not clearly allowable, i.e. they clearly do not satisfy the requirements of the EPC, because for example they clearly violate the requirements of Art. 123(2). This means that it must be immediately apparent to the Division that the amendments successfully address the issues raised without giving rise to new ones (prima facie assessment).
For example, late-filed requests will not be admitted if they do not clearly meet the requirements under Article 123(2) or Article 84. Likewise, late-filed requests may be rejected if the newly defined subject-matter does not constitute a convergent development of the subject-matter which has been the subject of examination.
When ascertaining whether or not the claims are clearly allowable, the Division takes into account whether the late-filed requests are accompanied by reasons explaining why the amendments have been made and how they are intended to overcome the objections raised.
If, after discussions, the Division comes to the conclusion that the late-filed requests are not clearly allowable, it should reject them under Rules 116(2) and 137(3) on the grounds that they do not contain subject-matter which is clearly allowable, i.e. because the subject-matter does not clearly meet the requirements of the EPC (for cases where the applicant does not attend the oral proceedings, see H‑III, 3.3.2, and E‑II, 8.3.3). In the decision, reasoning is also to be given as to why the specific requirement(s) for allowability is (are) not met.
The "clear allowability" criterion is generally also applied to patent proprietors' late-filed requests in opposition proceedings (see also T 98/96 with regard to opposition appeal proceedings).
If the applicant files a reasonable number of requests related to amendments before the final date set in accordance with Rule 116(2), such requests should be admitted into the proceedings (see also H‑III, 3).
If these requests or additional requests are filed after the above final date, they are late-filed and will be subject to the "clear allowability" criterion (see H‑II, 2.7.1). Thus, the Division should first consider the requests before deciding on their admissibility. The mere fact that they are filed late is not per se a reason for not admitting them. This issue will normally be dealt with during oral proceedings.
If, after discussions, the Division comes to the conclusion that the late-filed requests are not clearly allowable, it should not admit them under Rule 116(2) and Rule 137(3) on the grounds that they do not contain subject-matter which is clearly allowable, i.e. because this subject-matter clearly does not meet requirements of the EPC (where the applicant does not attend the oral proceedings, see H‑III, 3.3.2 and E‑II, 8.3.3). In the decision, reasoning is also to be given as to why the specific requirement(s) is(are) clearly not met.
As far as the criterion for admitting late-filed amendments is concerned, the Examining Division's first step should be to consider whether the claims are clearly not allowable, for example because they clearly violate the requirements of Art. 123(2). If the claims do not contain subject-matter which is clearly not allowable (i.e. they pass this first step in the examination of their admissibility), they should be admitted if they are then subsequently also found to satisfy the following criteria (T 1273/04):
However, it should be borne in mind that a request filed in response to a change of the subject of the proceedings, e.g. when a further document is cited for the first time during the oral proceedings, has to be admitted under Rule 116(1) (T 951/97).