6.2. Request for re-establishment as auxiliary request

In J 23/96 the applicant had applied for a decision under R. 69(2) EPC 1973 (R. 112(2) EPC) and, as an auxiliary request, asked for re-establishment of rights. The examining division issued a brief communication saying that the request for re-establishment would be decided once the decision under R. 69(2) EPC 1973 was final, or during any ensuing appeal. The Legal Board held that the examining division had been wrong not to decide on this auxiliary request. It noted that auxiliary requests were filed in case the main request was refused; they then took its place and had to be dealt with in the same decision. The course taken by the examining division was at odds with procedural economy, and might also oblige the applicant to appeal twice. This amounted to a substantial procedural violation (see also J 1/80). The Legal Board referred the matter back, without considering the merits, for the division to decide on the two requests together, the examining division being the "competent department" within the meaning of Art. 122(4) EPC 1973.