T 0583/25 - Allowable AR in examination appeal

• This is an appeal against a refusal decision.
• The examining division held that the subject-matter of claim 1 of the main request (sole request) underlying the decision under appeal did not specify that the "polysilicon emitter" was a "P-type polysilicon emitter" and therefore contravened the requirements of Article 76(1) EPC, as this constituted an unallowable intermediate generalisation.
• In a communication pursuant to Rule 100(2) EPC dated 26 June 2025, the board preliminarily agreed with the examining division and provided reasons for its view.
• The applicant withdraws the main request, and the Board has to decide on the admissibility of the auxiliary request filed with the SoG.
• “The amendments made to claim 1 of the auxiliary request overcome the sole reason for the refusal of the application, because the omitted term "P-type" is added in amended claim 1”
• “The auxiliary request could and should have been submitted in the examination proceedings. According to Article 12(6) RPBA, the board shall not admit such requests, unless the circumstances of the appeal case justify their admittance.”
• "In the present case, the board admits the auxiliary request into the appeal proceedings. The fact that the amendment in claim 1 of the auxiliary request overcomes the examining division's objection is regarded as a justifying circumstance within the meaning of Article 12(6) RPBA."
• "In this context, the board also takes into account the fact that the only possibility to have the examining division's decision on the claims of the main request reviewed by the board was to uphold the main request. In other words, even if the appellant had filed the auxiliary request in the examination proceedings as an auxiliary request, the examining division would have decided to refuse the main request, and the appellant would have had to file an appeal against this decision to have it reviewed by the board."
• If the applicant had filed AR-1 in the examination proceedings and maintained it, the Ex Div would have issued an intention to grant. The only way to obtain a refusal decision would have been to withdraw AR-1 (by keeping to the Main Request in reply to the Rule 71(3) Intention to grant). Then, the ‘not maintained’ prong of Art. 12(6)(s.2) would have applied.

https://www.epo.org/en/boards-of-appeal/decisions/t250583eu1