q) Requests reordered 

In T 1436/19 the appellant (patent proprietor) justified the proposed reordering by referring to the need for procedural economy in view of the preliminary opinion of the board, which stated that auxiliary request 4 was likely to overcome all the objections raised under Art. 83 EPC, Art. 84 EPC and Art. 123(2) EPC. The board decided that the reordering of the requests constituted an amendment to the appellant's appeal case and that it could not be taken into account because, inter alia, allowing the proposed reordering would force the board to first decide on a fully new main request not underlying the decision under appeal. This would be contrary to Art. 12(2) RPBA. In fact, the proposed reordering of requests would potentially lead to a situation where the board would have to remit the case to the department of first instance without having decided on requests underlying the decision under appeal still on file. This would be contrary to the scope of the appeal proceedings and might be also detrimental to procedural economy as a whole.

In T 2166/22 the board admitted the change of order of the auxiliary requests. It pointed out that the factual and legal framework of the respondent's (proprietor's) appeal case had not changed with the reordering of the auxiliary requests. Indeed, all the auxiliary requests had been submitted in opposition proceedings and resubmitted with the reply to the statement of grounds. Moreover, contrary to the appellant's argument, the change of order did not affect the procedural economy.

For a further example where a renumbered request was admitted, see T 369/22.

See also chapter V.A.4.2.3i) on the different views on whether reordering requests amounts to an amendment of the appeal case.