e) Convergence of claim requests 

(i) Claim requests becoming non-convergent by later submission of further requests 

In T 2112/16 the appellant (proprietor) filed auxiliary requests 1 to 14 with the grounds of appeal, and later, but before the notification of the summons to oral proceedings, new auxiliary requests 1A and 4. The board exercised its discretion under Art. 13(1) RPBA not to admit auxiliary requests 1A and 4 into the proceedings. On auxiliary requests 2, 3 and 5 to 14, the board held that the sequence of the auxiliary requests had been changed during the course of the appeal proceedings due to the introduction of auxiliary request 1A, and this involved a material change in the focus of the claimed invention. The board took the view that the selected sequence of the auxiliary requests led to an evident broadening and lack of convergence in the requests. Such a change made after a party had presented its complete case did not meet the requirement for procedural economy set out in Art. 13(1) RPBA. The board exercised its discretion under Art. 13(1) RPBA not to admit the auxiliary requests 2, 3 and 5 to 14 into the proceedings. See also T 1185/17 by the same board.

However, see also T 1520/20, in which the board drew a distinction with case T 2112/16 as to whether there had been an amendment to the submissions at all. In the case at issue, all auxiliary requests were submitted with the statement of grounds of appeal, and contested auxiliary request 4 had already provided the basis for the first-instance decision. The board held that auxiliary request 4 did not become inadmissible as a result of the submission of new auxiliary requests 1 to 3, which, according to the opponents, were divergent.

(ii) Non-convergent requests filed in response to diverging objections 

In T 938/20 the main request had been submitted as auxiliary request 105 shortly before the notification of the summons to oral proceedings. When exercising its discretion under Art. 13(1) RPBA the board observed that, in the case at issue, where an extremely large number of objections of different kinds had been raised against all the requests on file, convergence was particularly difficult to achieve and under the given circumstances should not be used as the only criterion for denying admissibility of this request. It further noted in this context that a series of requests that are drafted in defence against a single objection are expected to converge, but equality of arms would be undermined if the opponent was free to raise a multitude of diverging objections, whereas the patentee was restricted to only one line of defence against all of these.