e) Amendment shifting focus to feature that was previously optional – not admitted 

In T 764/16 the respondent (patent proprietor) argued that the subject-matter of the auxiliary requests at issue was clearly allowable as these requests were more limited than the main request. Claim 1 now necessarily included feature 1l, which had been only optional in claim 1 of the main request. The board, however, observed that there had been no discussion of this feature in the contested decision, the proceedings at first instance having concentrated on objections relating to alternative feature 1k. Moreover, it considered the feature to require interpretation. Filing the auxiliary requests after the summons thus confronted the board and the appellant with new facts involving complex issues which, if the requests were admitted, might mean having to remit the case to the opposition division. The amendments in the auxiliary requests were therefore detrimental to procedural economy. The board did not consider the reasons put forward by the respondent to be cogent and it could not see any exceptional circumstances within the meaning of Art. 13(2) RPBA 2020 that could have justified the late filing of the auxiliary requests.