In T 1421/20 auxiliary requests 6 to 12 were filed in preparation for the oral proceedings before the examining division, which, exercising its discretion under R. 137(3) EPC, decided not to admit them into the proceedings as late filed and prima facie unclear. Since the appellant did not provide any arguments with respect to these requests on appeal, the board saw no reason to question the decision of the examining division and decided not to admit these requests into the appeal proceedings (Art. 12(6) RPBA 2020).
In T 847/20 auxiliary requests 3 and 4, filed with the statement of grounds of appeal, corresponded to auxiliary requests filed during the oral proceedings before the opposition division. Those requests had not been admitted into the opposition proceedings in view of their late filing and the fact that they did not comply with Art. 123(2) EPC. However, the board noted that the opposition division had not carried out a prima facie assessment but had fully considered the requests before concluding that they could not be admitted. The board considered that, by doing so, the opposition division had implicitly admitted the requests. Consequently, the board took the view that the opposition division had wrongly exercised its discretion because, having implicitly admitted the requests, there was no discretion left not to admit them (T 2026/15, T 2324/14).
- T 1617/20
Prima facie allowability under Article 123(2) EPC of a late filed amended claim request may be a valid criterion to be used by the opposition division when deciding on the admittance of this claim request. However, using this criterion, to object for the first time at oral proceedings to a feature of the late-filed claim request that was already present in higher ranking claim requests and had never been objected to before, not even when deciding on the allowability or admittance of those higher-ranking claim requests, goes against the principles of fairness and good faith (see point 2.6.11 of the reasons).