2.3. Consolidation of proceedings

In J 17/92 the possibility of consolidating proceedings and the preconditions it laid down for such consolidation were subject to review by the boards of appeal. The Legal Board held that allowing consolidation was something both permissible and desirable under the EPC, in accordance with the desire expressed in the preamble to the EPC that such protection be obtainable in the contracting states by means of a single procedure for the grant of patents. Consolidation was not only in the interest of applicants, but also in that of the public not to have to take account of two separate European patents with the same text. The Legal Board noted that the conditions to be imposed on consolidation should not be more restrictive than necessary. It therefore took the view that the condition that the two applications at issue as filed had to be identical was too stringent. In the case in hand, the Legal Board found that if the form of claims with which the applicant wished to proceed in the consolidated applications was acceptable either as an amended set of claims or as being identical to the set of claims as filed, consolidation should be possible. In the Legal Board's view, such an amended set of claims should prima facie not prevent consolidation.

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