2.2.2 Burden of proof

In T 56/01 the board emphasised that, when an objection under R. 29(2) EPC 1973 arose, the burden of proof was shifted onto the applicant, i.e. it was up to the applicant to argue convincingly why additional independent claims could be maintained. Likewise the board in T 1388/10 stressed that the onus of setting out and proving the case for the application of an exception (in this case, an exception under R. 43(2) EPC) lay with the party seeking to rely on that exception. Thus, an applicant wanting more than one independent claim in the same category must, if the examining division objects, convincingly demonstrate that all the additional independent claims fall under one of the exceptions provided for in R. 43(2) EPC.

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