f) Request previously only paraphrased and not set out in full 

In T 2154/19 the appellant (patent proprietor) argued that auxiliary requests 2 and 3 filed at the oral proceedings did not amend its appeal case because they had already been filed in a passage in its grounds of appeal. However, the claim sets had merely been paraphrased there; they had not been set out in full. A sufficiently precise particular combination of claims selected from the auxiliary requests dealt with in the contested decision could not be identified from that passage. The board therefore considered that auxiliary requests 2 and 3 amended the appeal case.

The situation was different in T 276/17, in which auxiliary request 2 had not been filed with either the notice of appeal or the grounds of appeal, but had been dealt with in the decision under appeal and referred to in the grounds of appeal. In the board's view, there was no doubt that the reference to "the auxiliary request" could relate only to the single auxiliary request dealt with in the decision under appeal, and so that request had been clearly identified. In addition, since that auxiliary request had already been admitted, and its merits decided by the opposition division, the board considered that the identical auxiliary request 2 filed on appeal was part of the appellant's case under Art. 12(3)(a) RPBA.