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Guidelines for Examination

 
 
3.4.1
Written procedure 

If the Opposition Division, after examining the parties' submissions, considers it can maintain the patent only in amended form as per an auxiliary request from the proprietor, it must first ensure that the parties have been allowed to comment under Art. 113(1) on the grounds and evidence behind the non-allowance of the higher-ranking request(s) and on the grounds and evidence behind the allowance of the lower-ranking request (where oral proceedings have been requested see also H-III, 3.5.2).

If, despite the existence of an allowable request, the proprietor continues to maintain one or more unallowable higher-ranking requests, an interlocutory decision is issued. This decision must include the finding that the patent and the invention to which it relates, as amended in accordance with the allowable auxiliary request, meet the requirements of the EPC. It must also set out the reasons, based on grounds and evidence already communicated to the parties, for refusing the higher-ranking requests and for allowing the lower-ranking request.