4.12.7 Last chance

Some decisions considered whether a patentee should always be given a "last chance" to save its patent. It has been thoroughly discussed and clearly established by the boards of appeal that there is no absolute right for a patentee to such a "last chance" request. On the contrary, the admissibility of a late-filed request is always a matter for the board's discretion (T 837/07). Moreover, as stated inter alia in decision T 446/00, the concept of a "last chance" suggests one last chance at the end of the proceedings and not multiple "last chances" on numerous occasions during the course of the appeal. However, a patentee is normally given an opportunity to limit his claims even at the oral proceedings, so that he is given a last chance to obtain a patent (T 577/97, T 707/08, T 1165/13).

In T 1067/10 the board stated that the argument of its being the patentee's last chance in view of the non-admission of requests cannot be accepted since the appellant had had ample opportunity to file amended sets of claims at an earlier stage in the proceedings and did not need to wait until the oral proceedings to do so.

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