Late-filed requests after summons to oral proceedings in examination 

If requests are filed after the final date set in accordance with Rule 116(2), they are usually treated as late-filed unless a summons to oral proceedings was issued as the first action of the examining division. Another exception is a request filed in response to a change of the subject of the proceedings, e.g. when a further relevant document is cited for the first time during the oral proceedings. In such a case, the request has to be admitted under Rule 116(2) (T 951/97).

The examining division will first consider the requests before deciding on their admissibility. The mere fact that they are filed late is not per se a reason for not admitting them. This issue will normally be dealt with during oral proceedings.

In exercising its discretion under Rule 137(3) (see G 7/93), the examining division needs to take into account whether the applicant has good reasons for filing the request late. In the absence of such reasons, and if the applicant has already had sufficient opportunity to address the reasoned objections, when balancing the relevant interests the examining division may give more weight to bringing the examination procedure to a close.

In such cases, late-filed requests will be subject to the "clear allowability" criterion (see H‑II, 2.7.1) in addition to the criteria indicated in H‑II, 2.3.

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