b) Admission of requests already refused by the examining division 

It is the established jurisprudence of the boards of appeal that the power of the examining division to consent to amendments under R. 137(3) EPC is a discretionary power. According to G 7/93 (OJ 1994, 775) the way in which the examining division should exercise its discretion to allow an amendment of an application must depend upon the circumstances of each individual case, and must also depend upon the stage of the pre-grant procedure which the application has reached. A board of appeal should only overrule the way in which a department of first instance has exercised its discretion if it comes to the conclusion either that the department of first instance, in its decision, has not exercised its discretion in accordance with the right principles or that it has exercised its discretion in an unreasonable way. The exercise of a discretionary power has to strike a balance between, in particular, the applicant's interest in obtaining adequate protection for his invention and the EPO's interest in bringing the examination to a close in an effective and speedy way. Moreover, the exercise of a discretionary power has to be reasoned, otherwise it would be arbitrary (T 246/08).

In T 820/14 the board pointed out that it had its own discretion to admit a request not admitted at first instance and was generally not bound by how the first-instance department had exercised its discretion (on this see also T 971/11).

In T 1888/18 it was not apparent to the board that the examining division (which had applied the criterion of prima facie allowability) had exceeded the proper limits of its discretion. The board explained that in such a situation it nevertheless had to exercise its discretion under Art. 12(4) RPBA 2007 independently (see T 971/11, T 2219/10 and T 1816/11), giving due consideration to the appellant's additional submissions and to any changes in the circumstances.