h) Requests not admitted by the opposition division 

In T 411/17 the second auxiliary request was identical to the second auxiliary request dealt with in the decision under appeal. The opposition division had not admitted that request on the grounds that it was late filed and that the new feature g) did not correspond to anything in a dependent claim of the patent as granted. The board observed that the request had been filed one year ahead of the oral proceedings at first instance and that, apart from feature g), claim 1 of this request corresponded to a combination of claims 1, 8 and 9 as granted, a combination against which the opponent had at no point in time raised objections. The board therefore considered that the opponent had had sufficient time to prepare for the subject-matter of this request. In view of these considerations, the board, exercising its own discretion under Art. 12(4) RPBA 2007, decided to admit the second auxiliary request into the appeal proceedings. However, when assessing R. 103(1)(a) EPC, the board came to the conclusion that the opposition division, when exercising its discretion, had applied the proper principles on the basis of the correct facts and in a reasonable way (G 7/93, OJ 1994, 775).

In T 43/16 the board concluded that the opposition division had exercised its discretion improperly in refusing to admit the main request and admitted it on appeal under Art. 12(4) RPBA 2007.