T 1067/08 (High-activity phytase/BASF SE) vom 10.02.2011

Main request identical to sole request not admitted in opposition proceedings - not admitted (abuse of procedure)
Auxiliary requests - not admitted (withdrawn/should have been filed in first instance proceedings)

Exercise of the powers under Article 12(4) RPBA is not conditional upon a party's conducting itself in bad faith or in a manner necessitating adjournment of the oral proceedings (points 3 and 5.3). Neither a party nor the department of first instance is at liberty to bring about the shifting of a case to the second instance as it pleases; such "forum shopping" would jeopardise the proper distribution of functions between the departments of first instance and the boards of appeal. Exercise of those powers may also be justified where a party's conduct - e.g. maintaining a single request which the opposition division had declined to admit into the proceedings as an abuse of procedure, and refusing to file amended and/or auxiliary requests - has in effect prevented the department of first instance from giving a reasoned decision on the critical issues, thereby compelling the board of appeal either to give a first ruling on those issues or to remit the case to the department of first instance (points 7.2 and 8.1).