In ex parte case T 1775/18, the appellant argued that the introduction in an independent claim of a feature taken from a dependent claim was not an amendment of its case which, under Art. 13(2) RPBA 2020, required exceptional circumstances justified with cogent reasons. Such an amendment could not come as a surprise, since dependent claims were meant to define fallback positions. Moreover, the dependent claim concerned formed part of the decision under appeal, as it had been discussed by the examining division in an obiter dictum. The board did not agree. While it was true that dependent claims defined fallback positions for certain purposes, in EPO proceedings they could not be equated with auxiliary requests. Art. 113(2) EPC required the EPO to decide on an application in the text submitted to it, or agreed, by the applicant. According to the board, this meant that it was the applicant's responsibility to file an (amended) set of application documents that fully met the requirements of the EPC. For the sake of procedural efficiency, the RPBA set limits on when such amendments could still be filed in appeal proceedings.
T 312/19 concerned a new auxiliary request (6bis), filed during the oral proceedings, which combined subject-matter from two auxiliary requests. The board rejected the respondent's (patent proprietor's) arguments that the new request did not add anything new to the discussion, that the subject-matter under discussion already formed part of the respondent's appeal case, even if not included in one and the same request, and that, by not submitting all possible permutations of the independent claims, it had avoided the filing of an overwhelming number of requests. The board, however, held that the new auxiliary request was a change in the respondent's appeal case since it had never been part of the appeal proceedings until the oral proceedings. The board also pointed out that the new request combined two independent claims of two different requests and thus constituted a new contingency position of the respondent.