2.7.1 Concept of "clear allowability" 

The examining division will apply the criterion of "clear allowability" in exercising its discretion under Rule 137(3) for treating requests filed after the final date set in accordance with Rule 116(1) Rule 116(2) without proper justification (T 153/85).

These late-filed claims will only be admitted into the proceedings if they are clearly allowable. This means that it must be immediately apparent to the examining division that the amendments successfully overcome the objections without giving rise to new ones (prima facie assessment).

For example, late-filed requests will not be admitted if they do not clearly meet the requirements under Art. 123(2) or Art. 84. Likewise, late-filed requests may be rejected if the newly defined subject-matter does not constitute a convergent development of the subject-matter which has been the subject of examination (for a definition of convergence, see H‑III, 3.3.2.2).

For ascertaining whether or not the claims are clearly allowable, the examining division must take into account the reasons given by the applicant which explain why the amendments have been made and how they are intended to overcome the objections raised.

If, after discussions, the examining division comes to the conclusion that the late-filed requests are not clearly allowable, it rejects them under Rule 116(2) and Rule 137(3) on the grounds that they do not contain subject-matter which is clearly allowable, i.e. because the subject-matter does not clearly meet the requirements of the EPC (for cases where the applicant does not attend the oral proceedings, see H‑III, 3.3.3 and E‑III, 8.3.3). In the decision, reasoning is also to be given as to why the specific requirement(s) for allowability is (are) not met.

The "clear allowability" criterion is generally also applied to patent proprietors' late-filed requests in opposition proceedings (see E‑VI, 2.1, and E‑VI, 2.2; see also T 98/96 with regard to opposition appeal proceedings).