(i) Obligation to reason refusal of request

According to T 961/00, it is a party's procedural right to file and maintain such requests as are regarded by the competent organ as unallowable or even inadmissible. If a party does so, then the competent organ has to give a decision on it (see T 1105/96, OJ 1998, 249), but cannot simply disregard it and deal with the case as if the request did not exist. This would constitute a substantial procedural violation (see also T 234/86, T 484/88, T 155/88).

In T 1157/01 the decision under appeal had omitted to give reasons for the refusal of the higher ranking requests still pending before the examining division; this amounted to a substantial procedural violation (see also T 488/94; for opposition procedure see T 234/86, OJ 1989, 79).

(ii) Auxiliary requests and order of requests

In J 23/96 the board held that an auxiliary request was filed in case the main request was refused; the auxiliary request then took its place and had to be dealt with in the same decision. The examining division's failure to deal with the auxiliary request for re-establishment in the decision under R. 69(2) EPC 1973 (R. 112(2) EPC) amounted to a substantial procedural violation.

In T 320/99 (referring to T 1105/96) the examining division considered the auxiliary request allowable, but nonetheless issued a decision refusing the main request and thus the application. The correct course of action would have been to issue a communication under R. 51(4) EPC 1973 based on the auxiliary request. The issue of the decision was a substantial procedural violation which justified the reimbursement of the appeal fee.

In T 883/07 the board held that the examining division's failure to examine the auxiliary requests independently of the main request amounted to a substantial procedural violation within the meaning of R. 67 EPC 1973. Claim requests do not coexist in parallel, but form a stack which has to be considered ‒ each one independently of all the others ‒ in the sequence indicated by the applicant or patent proprietor (see Guidelines C‑VI, 4.1 and E‑X, 3 – June 2005 version).

In T 1758/15 the opposition division had concluded that four attempts to overcome a single issue were enough. The decision to not admit a further request was taken without having identified any signs of procedural abuse and without knowing the content of the further request. The board concluded that the opposition division had not exercised its discretion under R. 116(2) and Art. 114(2) EPC in a reasonable way, which constituted a substantial procedural violation. However, because the appeal was not deemed allowable, the appeal fee was not reimbursed. In any case, during second oral proceedings the appellant withdrew its request for reimbursement.

(iii) Requests not taken into account because of delay within EPO

In T 231/85 (OJ 1989, 74) the board held that failure to take the applicant's requests into account as a result of a delay within the EPO (in this case six weeks) constituted a substantial procedural violation (see also T 598/88). In T 205/89, owing to a mistake by a formalities officer, a request for an extension of the time for submitting comments in opposition proceedings never reached the opposition division, which therefore took its decision without considering the argument presented in the subsequently filed submission. The board considered that the failure by the formalities section amounted to a substantial procedural violation on its part and regarded the reimbursement of the appeal fee to thus be equitable.

(iv) Requests not filed by correct party

In T 1178/04 a procedural violation within the meaning of R. 67 EPC 1973 had occurred, in that the requests relating to the patentability of the claimed invention were made in the oral proceedings before the opposition division by a party to whom the opposition had been purportedly but invalidly transferred. These requests were inadmissible.

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