2.1. Requirement to specify the order of requests

The established system of main and auxiliary requests in the proceedings before the EPO provides that parties, when filing alternative sets of claims, must indicate the order of preference for each set of claims (R 14/10, T 1125/13 of 25 June 2015 date: 2015-06-25, T 52/15). In T 255/05 the board held that under Art. 113(2) EPC 1973 (Art. 113(2) EPC) it was the applicant's responsibility to define the text on the basis of which it requested a patent to be granted. When the appellant, even after having been invited to do so by the board, did not clearly indicate the order in which its requests were submitted and what the exact content of each of these requests was, there was no text submitted or agreed by the applicant within the meaning of Art. 113(2) EPC 1973. See also the summary of T 148/06 in chapter III.I.3.2 "Requests of equal ranking".

In T 1439/05 the board held that to avoid misunderstandings, the examining division should clarify the status of the requests before pronouncing its decision at the conclusion of oral proceedings.