In some cases, requests filed after the scheduling of oral proceedings referred to features derived solely from the description. This raised the question of whether such features had been included in the original search, or whether an additional search was necessary. It could not be automatically assumed that they had been considered in the original search or that the opponent was responsible for carrying out such a search (T 1732/10, see also T 447/09, T 1273/11). In T 1650/12 and T 2482/10, for example, it was decided that, where an additional search was needed to assess the patentability of claims amended with features from the description at such a late stage that either the oral proceedings had to be adjourned or the case remitted to the department of first instance for further prosecution, Art. 13(3) RPBA 2007 had to be interpreted such that those claims were inadmissible. Remittal of the matter to the opposition division to conduct such a search would amount to the same thing as adjourning oral proceedings, and adjournment would also be necessary if the opponent were obliged to carry out such a search (see also T 1273/11, T 2575/11).
In T 1741/12 and T 881/09 it was decided not to admit the relevant auxiliary requests which incorporated probably unsearched features taken from the description, using the board's discretionary power under Art. 12(4) RPBA 2007.