In T 246/08 the board stated that a refusal to allow amendments made in advance of any amendment being submitted could not be a reasonable exercise of discretion pursuant to R. 137(3) EPC and was ipso facto a substantial procedural violation (see also T 872/90).

In T 121/06 the board held that issuing a communication under R. 51(4) EPC 1973 in which amendments were proposed which the applicant could not reasonably be expected to accept without further discussion constituted a substantial procedural violation.

In T 901/10 the appellant implied that the way in which the examining division had applied R. 137(3) and (4) EPC amounted to a substantial procedural violation. After the application had entered the European phase, no examination report was issued for six years. Nevertheless, the board held that such delays, undesirable as they may be, do not oblige the examining division to be more lenient under R. 137 (3) EPC. The appeal fee was not reimbursed.

In T 1354/13 the board held that an applicant who presents extensively revised claims at a late stage of the proceedings has to be prepared for the possibility that the admissibility of these claims will be considered under Art. 123 and R. 137 EPC. The request for reimbursement of the appeal fee was refused.

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