5.2. Non-attendance of party who filed new claims without amended description before oral proceedings; no reason for postponement of ruling

In T 917/95 the board held that a patentee who, in inter partes proceedings, filed a new claim but no amended description prior to the oral proceedings before the board of appeal and who failed to attend the oral proceedings could not rely on the board's postponing its ruling simply to permit amendment of the description, even if the new claim was grantable (see also T 725/00, T 109/02, T 181/02, T 776/05, T 651/08, T 2294/08). In T 1810/06 the board extended this finding of T 917/95 to an ex parte case. In T 985/11 the board stated that it still has discretion under Art. 111 EPC to decide how to proceed in this situation, and in particular whether to remit the case to the opposition division for adaptation of the description or exercise the powers of the opposition division and either continue the proceedings in writing or revoke the patent.