2.4.7 Late-filed requests after summons to oral proceedings in examination

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. In exercising its discretion under R. 137(3) EPC (see G 7/93), the examining division should take into account whether the applicant has good reasons for filing the request late (Guidelines H‑II, 2.7 – March 2022 version).

The examining division will also apply the criterion of "clear allowability" in exercising its discretion under R. 137(3) EPC for treating requests filed after the final date set in accordance with R. 116(2) EPC without proper justification (Guidelines H‑II, 2.7.1 – March 2022 version; see also T 153/85, OJ 1988, 1).

In T 102/15 the board found that the examining division's reasons for refusing to admit the then auxiliary requests 6 to 8 – namely that, prima facie, they did not overcome the objections of a lack of inventive step and their extension beyond the content of the application as filed – showed that it had followed the approach set out in the Guidelines and concluded that the requests had already failed at the first hurdle in the assessment of admissibility. Auxiliary requests 6 to 8 were filed with the examining division the day before the oral proceedings, i.e. after the date fixed under R. 116 EPC in the summons. The examining division had, the board held, exercised its discretion under R. 137(3) EPC reasonably and – in applying the "clear allowability" test – in accordance with the right criteria. The board saw no reason to exercise its own discretion under Art. 12(4) RPBA 2007 differently.