4.5.5 New requests filed – exceptional circumstances established
In T 131/18 the main request at issue (filed as auxiliary request 6 after notification of the summons to oral proceedings) was, save for two amendments, identical in wording and content to auxiliary request 3, which had already been filed in response to the reply and which the board considered to meet the conditions for admission under Art. 13(1) RPBA 2020. The two amendments in the main request related to inconsistencies remaining in auxiliary request 3, namely wording regarded as incompatible with Art. 123(2) EPC the appellant (patent proprietor) had removed from claim 1 but left in dependent claim 2, and a somewhat unclear expression it had replaced in claim 1 but not in method claim 6. These inconsistencies had been cleared up in the main request. The board concurred with the appellant that the amendments were merely editorial changes occasioned chiefly by its communication under Art. 15(1) RPBA 2020, and classed this as an exceptional circumstance within the meaning of Art. 13(2) RPBA 2020. Art. 13(2) RPBA 2020 had not been intended to rule out entirely the possibility of making minor amendments such as ones correcting obvious discrepancies or grammatical errors, which were admissible under R. 139 EPC for instance, once the summons to oral proceedings had been issued.
- T 1558/22
Orientierungssatz:
Zum Argument, ein neuer Hilfsantrag sei nur eine Korrektur und keine Änderung im Sinne Art 13(2) VOBK, Gründe 5.1 bis 5.5