c) Resubmission of requests withdrawn during examination 

In T 902/10 the board held that it is established case law that the Boards of Appeal do not admit requests that were withdrawn during first instance proceedings (T 922/08); if the board were to admit such a request, it would be contrary to the main purpose of ex parte appeal proceedings, which are primarily concerned with examining the contested decision (cf. G 10/93, OJ 1995, 172), i.e. with providing the adversely affected party (the applicant) with the opportunity to challenge the decision on its merits and to obtain a judicial ruling as to whether the first-instance decision was correct (see also T 2278/08, T 1306/10, T 1311/11, T 2489/11, T 1818/16).

In T 922/08 claim 1 of the main request filed with the statement of grounds of appeal was identical to claim 1 of the request that had been filed as a first auxiliary request before the examining division. During the oral proceedings before the examining division, the applicant withdrew this request of its own volition. The board stated that even if the withdrawal of the present main request during the examination procedure was not considered an abandonment of this request for subsequent appeal proceedings as argued by the appellant, the fact that the request was withdrawn in the first-instance proceedings precluded the issue of a reasoned decision on its merits by the examining division. Reinstating this request upon appeal would compel the board either to give a first ruling on the critical issues, which runs contrary to the purpose of a second-instance ruling, or to remit the case to the department of first instance, which is clearly contrary to procedural economy (see also T 1156/09, T 1231/09, T 902/10, T 184/13, T 2508/13).

In T 675/13 the embodiment which claim 1 covered had already been pursued in the first-instance proceedings and was then abandoned, thus preventing that aspect of the invention from being decided on its merits by the examining division. The board held that its reinstatement would allow a kind of inadmissible "forum shopping" (see e.g. T 2017/14).

In T 435/11 claim 1 of the request essentially corresponded to a claim on which the examining division had expressed a negative opinion with respect to novelty and which had subsequently been withdrawn in favour of more restricted claims. The board took into account the special circumstances of the case. In the first-instance proceedings, the appellant had introduced limitations against which the examining division had raised objections under Art. 123(2) EPC, and the appellant had not been able to overcome those objections by further amendment. If the appellant in these appeal proceedings was to be afforded a way out at all, it had to be allowed to revert to a claim with the offending features removed. The board therefore admitted the main request into the proceedings.