T 0075/09 du 13.09.2011

Insufficiency of disclosure - Main and First Auxiliary Requests (yes)
Amendments - added subject-matter (Second Auxiliary Request (yes))
Examination procedure - requirements of the European patent application to be dealt with prior to the question of patentability

Where - as in the present case - there are multiple requests and a feature common to all requests is held not to meet the requirements of Article 84 EPC, as a consequence of which higher ranking requests are refused, all lower ranking requests retaining this feature have to be refused for the same reason.
The fact that in a lower ranking request the offending feature no longer has to be relied upon to establish a distinction over the prior art does not overcome the defect pursuant to Article 84 EPC. Nor does it give the deciding body the discretion to disregard the deficiency.
In particular it has to be borne in mind that the significance of a feature may become apparent only at a later stage in the life of a patent, eg in opposition or revocation proceedings (cf. Nos. 2.7 to 2.9 of the reasons).