2.9 Main and auxiliary requests 

If, in examination proceedings, a main and auxiliary requests have been filed (see  E‑IX, 2.2 E‑X, 2.2) and none of them is allowable, the reasons for the decision to refuse the application under Art. 97(2) must not be limited to the main request, but must also include the reasons for the non-allowability of each auxiliary request. If one of the requests is allowable, the communication under Rule 71(3) is to be issued on the basis of the (first) allowable request and must be accompanied by a brief indication of the main reasons why the higher-ranking requests are not allowable or not admissible (see C‑V, 1.1). If, in response to the communication under Rule 71(3), the applicant maintains higher-ranking requests which are not allowable or not admissible, a decision to refuse the application under Art. 97(2) will normally be issued (see C‑V, 4.7 and C-V, 4.6.2). The reasons must set out the grounds for the non-allowability or non-admissibility of each request which ranks higher than the allowable request. In respect of the allowable request, the decision to refuse must mention that applicants have failed to give their approval to it.

Similarly, if in opposition proceedings, the proprietor has submitted, in addition to the main request, one or more auxiliary requests, none of which is allowable, the patent must be revoked and the decision must set out the reasons for not allowing each request submitted and maintained by the proprietor. Where one of the proprietor's requests directed to the maintenance of the patent in amended form is allowable, an interlocutory decision is to be issued on the basis of the (first) allowable request. The decision has to set out the reasons why this request meets the requirements of the EPC and, additionally, the reasons why the higher-ranking requests do not.

A decision rejecting multiple requests may not be taken until the applicant or proprietor has been informed of the reasons for not allowing each of these requests, so that they are not deprived of the opportunity to present comments (Art. 113(1) – right to be heard). Similarly, the opponent or opponents must be given an opportunity to comment on an auxiliary request before it is held allowable by an interlocutory decision (see D‑VI, 7.2).

Practical considerations will determine at which point in the decision the auxiliary request is dealt with.