5.12.2 Withdrawal and resubmission of a a request on appeal

In T 1695/14 the auxiliary request in question, which the patent proprietor had filed during the oral proceedings, was the same as one of the auxiliary requests it had filed with its grounds of appeal. But the proprietor had not then pursued that original auxiliary request in the written proceedings, instead filing new auxiliary requests with a written submission stating that it wanted them to replace its previous ones. The board interpreted this statement as an implicit withdrawal of the auxiliary request (see T 388/12, T 52/15). The board then considered the relevant criteria for admitting a resubmitted request. Since a withdrawn request no longer formed part of the proceedings (see T 1732/10, T 143/14), its admission on resubmission later in them was subject to the same procedural standards as applied to an entirely new one (see T 1732/10, T 122/10); this was the boards' settled case law. Hence a request initially filed on appeal but implicitly or explicitly withdrawn later on in the proceedings had to be considered a new request when subsequently refiled. Its admission was then governed in particular by Art. 13 RPBA 2007 and the criteria for exercising discretion under it developed by the case law. See also chapter V.A.5.12.7 "Discretion to admit amended claims at any stage of the appeal proceedings".