Criteria for admissibility of auxiliary requests
As set out above (H‑III, 3.1.4)a matter of principle
, the examining division must, when exercising its discretion under Rule 137(3)
not to admit one or more auxiliary requests, balance the interests of the applicant and procedural efficiency (see also H‑II, 2.3
, H‑II, 2.5.1
, H‑II, 2.6
and H‑II, 2.7
Thus, an auxiliary request which contains minor deficiencies but otherwise complies with the requirements of the EPC should normally be admitted into the procedure.
When deciding on the admissibility of auxiliary requests the principles set out in H‑II
should be considered for each of the requests, since each request is in fact a set of amended claims.
Auxiliary requests reintroducing subject-matter which has already been considered unallowable and has been removed by the applicant will not be admitted (see also H‑II, 2.3
). The same may apply to auxiliary requests introducing new deficiencies.
When a group of auxiliary requests is filed, these requests must be filed in a clear order and must not be worded such that they leave it for the examining division to identify and to speculate on the intended text of the claims (R 14/10). Furthermore, all auxiliary requests must relate to one invention: the examining division will exercise its discretion under Rule 137(3) and will refuse to admit auxiliary requests which involve switching from the searched invention chosen for examination to another invention (see C‑III, 3.4, and H‑II, 7).