L. Correction of errors in decisions

In T 2081/16 the board distinguished the case at hand, where the patent had not been granted based on documents approved by the applicant, from G 1/10 (OJ EPO 2013, 194). It held that a decision to grant pursuant to Art. 97(1) EPC which was based on an application in a text which was neither submitted nor agreed to by the applicant, as was the case here, did not comply with Art. 113(2) EPC. Where the text intended for grant is not communicated to the applicant under R. 71(3) EPC, the fact that the appellant subsequently files a translation and pays the fees for grant and publishing is not decisive. The provisions of R. 71(5) EPC, in this regard, refer to R. 71(3) EPC and therefore presuppose that the applicant has not been notified of any text but of the text intended for grant (emphasis added by the board). Only in this case would R. 71(5) EPC apply and would the filing of a translation and the payment of the relevant fees imply the approval of the text communicated to it. In arriving at its decision, the board stated that it had not deviated from G 1/10 and that Art. 21 RPBA 2007 did not therefore apply. In G 1/10, the Enlarged Board of Appeal found that R. 140 EPC was not available to correct the text of a patent. This question was not at stake in the case in hand. In the case in hand, no text had been approved by the applicant. This was fundamentally different from attempts to impute mistakes in amended claims which were introduced by an applicant to the examining division "by suggesting the examining division did not intend to make a decision which in fact included the very text approved by the applicant himself – in order to bring the applicant's own error within the ambit of R. 140 EPC" as referred to by the Enlarged Board in G 1/10 (see point 11 of the Reasons).  

In the decision under appeal in T 1003/19 the appellant had not requested the grant of a patent with any other than the seven drawing sheets as initially submitted and published. The communication under R. 71(3) EPC, however, referred only to "drawings, sheets 1/1 as published". The board found that the decision under appeal did not comply with Art. 113(2) EPC and that the examining division had committed a substantial procedural violation. The request for reimbursement of the appeal fee was however rejected; while the error was committed by the examining division, the appellant had several instances to spot this error and, at the latest, could and should have noticed it when comparing the text of the communication under R. 71(3) EPC and the "Druckexemplar". In arriving at its decision, the board stated that the consequence as stipulated in R. 71(5) EPC, i.e. "the applicant ... shall be deemed to have approved the text communicated to him under paragraph 3", only applied where the applicant, according to R. 71(3) EPC, had been informed "of the text in which it [i.e. the examining division] intends to grant" the patent. The meaning of the word "text" (in German: "Fassung") is not limited to written information but may contain visual information as can be deduced from R. 73(1) EPC: "The specification of the European patent shall include the description, the claims and any drawings." With reference to the case in hand the board further stated that the EPO may on its own initiative suggest minor amendments; however the removal of all drawing sheets showing embodiments of the invention could not be expected to be accepted by an applicant. The board stated that it had not deviated from G 1/10, which based its consideration on the requirement according to R. 71(3) EPC that the applicant must be informed of the text in which the examining division intends to grant a patent (see point 10 of the Reasons) and deals with the applicant's possible reactions thereto, like the implicit approval of this text. In contrast thereto the board's decision in the case in hand was based on the fact that the text intended for grant by the examining division had, based on verifiable facts, not been communicated to the appellant and, therefore, R. 71(5) EPC did not (at that time) apply. As a result, no text had been approved by the appellant.