T 1439/16 - Late filed request with deleted claim allowable as it improves procedural economy
In response to the Boards preliminary opinion, the proprietor filed a request (auxiliary request 6) by deleting claim 1 of an existing request. This resolved an added subject matter problem. The opponent objects against the new request as being late filed. The Board agrees that the request ought to have been filed with the proprietor's reply to the statement setting out the grounds of appeal. However, since a claim has been deleted procedural economy has improved, and so the request is allowed.
In response, the opponent voices new added subject matter objections to (now) claim 7 of the new request. These are not allowed in the procedure, as that would be detrimental to procedural economy. The objection should have been raised before the oral proceedings-- It was the choice of the appellant to make an objection for added subject-matter only to claim 1 and not to (then) claim 8 in the statement setting out the grounds of appeal.
