i) Requests reordered 

Opinions have differed amongst the boards as to whether it can be considered an amendment to the appeal case if a request presented in the statement of grounds of appeal or the reply to the appeal is altered as a result of new higher-ranking requests being filed or the requests being reordered. For the same issue in the context of Art. 12(4) RPBA, see chapter V.A.4.2.2c) (vi). For the exercise of discretion under Art. 13(2) RPBA, see chapter V.A.4.5.4q).

In T 2112/16 the sequence of the auxiliary requests had been changed during the course of the appeal proceedings due to the introduction of auxiliary request 1A, which contained an additional feature, which was not present in any of the lower-ranking auxiliary requests. In the board's view this involved a material change in focus of the claimed invention and thus resulted in an amendment of the case.

In T 716/17 the patent proprietors substantially reordered their pending requests several times during the oral proceedings. This resulted in a repeated change in the subject-matter to be discussed, since the auxiliary requests selected by the patent proprietors related to a variety of different and diverging attempts to find allowable subject-matter. The board considered that the reordering of pending requests carried out by the patent proprietors amounted to an amendment of the case, which needed to be justified according to Art. 13(2) RPBA. This requirement was not met.

In T 1436/19 the appellant (patent proprietor) requested a few weeks before the oral proceedings to reorder the requests filed with the statement of grounds of appeal by renumbering the former auxiliary request 4 as new main request and the former main request and auxiliary requests 1 to 3 as new auxiliary requests 1 to 4 respectively. The appellant justified the proposed reordering by referring to the need for procedural economy in view of the preliminary opinion of the board stating that auxiliary request 4 was likely to overcome all the objections raised. The board decided that the reordering of the requests constituted an amendment to the appellant's appeal case and in exercise of its discretion under Art. 13(2) RPBA did not to take the amendment into account.

In T 218/20, however, the board did not see how merely changing the order of requests that were all filed with the reply to the grounds of appeal as a fair and appropriate reaction to developments in the first-instance proceedings, and which the parties and the board had had ample opportunity to consider, should mean that the much stricter provisions of Art. 13 RPBA had to apply for their admission. In the board's view, in the case in hand the subject of the proceedings and the issues raised had clearly not changed.

In T 228/22 the appellant (proprietor) changed the order of requests in response to the board's preliminary opinion by promoting the most promising request to main request. The board noted that the changed ranking order would result in the auxiliary requests not being convergent with the new main request. However, it held that even if the changed order as a whole were an amendment to the appellant's case, this would not affect the discussion of the main request.