5.2. Circumstances indicating that requests have not been withdrawn

In T 2188/22 the board pointed out that considering the annex to the minutes of the oral proceedings before the opposition division, it was clear that auxiliary requests 18 to 33 filed during the oral proceedings had been identical to auxiliary requests 2 to 17 filed during the written proceedings. According to the board, this supported the appellant's submission that the auxiliary requests filed during the written proceedings had not been withdrawn but only renumbered. Furthermore, the board held that with the appellant’s statement at the oral proceedings that it had wished to revert to the auxiliary requests which had been submitted in the written proceedings, the appellant had defined its auxiliary requests for the further course of the proceedings, i.e. it had been clear at that point in time that the appellant had wished to pursue auxiliary requests 2 to 17 filed in the written proceedings. See also chapter III.B.3. "Text submitted or agreed by applicant (patent proprietor) – Article 113(2) EPC".