In R 16/09 the Enlarged Board saw no legal basis for an obligation to hear a party on substantive issues before deciding on the admissibility of a proposed auxiliary request. In the proceedings under review the petitioner had expressed its intention to present an auxiliary request in the closing stages of the oral proceedings without having prepared a set of amended claims. The Enlarged Board stated that requiring a board to always invite a party to supply a text of amended claims before a decision on the admissibility of a proposed auxiliary request is taken, would deprive it of the discretion explicitly provided by Art. 13 RPBA 2007.

In R 5/11 the Enlarged Board held that the mere fact that a board takes into account the lateness of an auxiliary request when exercising its discretion under Art. 13 RPBA 2007 – although it did not explicitly raise this issue in the oral proceedings – does not infringe the right to be heard.