i) Application of the principles expressed in Article 12(6) RPBA 2020 to amended requests or single claims 

In ex parte case T 714/20, the main request was based on a request not maintained at first instance, with a further amendment to remedy a clarity objection noted in the decision under appeal. Similarly, the second auxiliary request corresponded to an auxiliary request underlying the decision under appeal, which had not been admitted by the examining division, again with a further amendment to remedy said clarity objection. The board noted that Art. 12(6) RPBA 2020 did not apply as such as the non-maintained and non-admitted requests had been amended. However, in the board's view the principles in Art. 12(6) RPBA 2020 for the admittance of non-maintained or non-admitted requests can be considered in the exercise of discretion under Art. 12(4) RPBA 2020. As regards the main request, the board observed that the amendment which had been carried out as a response to the mentioned clarity objection was unrelated to the amendment carried out at first instance when the non-maintained request was replaced. As regards the second auxiliary request, the board similarly observed that the amendment for clarity was unrelated to the reasons given for non-admittance of the corresponding first instance request. The board was further of the opinion that the discretionary decision of the examining division was taken in a reasonable manner. The requests were not admitted.

In T 1161/20, claim 1 of auxiliary request 1, submitted with the notice of appeal, corresponded to an independent claim of a request that had been filed on opposition but withdrawn during the oral proceedings before the opposition division. According to the board, the question arose as to whether Art. 12(6), second sentence, RPBA 2020 was applicable to the case in hand even though it was not auxiliary request 1 as a whole that corresponded to the request withdrawn on opposition but only one independent claim. The board noted that the reintroducing the claim was at odds with the aim of Art. 12(6), second sentence, RPBA 2020. However, the board left said question open since, in the exercise of its discretion, it could take account of the criteria set out in Art. 12(4), fifth sentence, RPBA 2020, as well as the principle set out in Art. 12(6), second sentence, RPBA 2020 (see T 714/20). The opposition division had been deprived of the chance to decide on the subject-matter of independent claim 1 of the auxiliary request 1 in question. Moreover, admitting such a request would run counter to the principle of procedural economy.