2.4.2 Party adversely affected (Article 107 EPC)

In T 265/20 the appellant was adversely affected by the decision to grant a patent, as all the drawing sheets as requested were missing from the text of the granted patent. The board acknowledged that the appellant was adversely affected by the discrepancy between the appellant's explicit request in the examination proceedings for the grant of a patent and the content of the B1 publication. The impugned decision did not include drawing sheets 1/4 to 4/4, and thus the B1 publication lacked these, and this was clearly less than what was requested by the appellant. The fact that all the drawing sheets were missing was sufficient for the conclusion that the appellant was adversely affected by the impugned decision, irrespective of why the sheets were missing or how the legal framework of R. 71 EPC had to be interpreted.

The board referred to T 2277/19, in which the facts were different from the outset. In that case, the original application contained the description pages, the claims and drawing sheets 1/18 to 18/18. During the examination proceedings, the applicant filed amended drawing sheets 1/7 to 7/7 to replace drawing sheets 1/18 to 18/18 of the application as filed. Drawing sheets 1/7 to 7/7 were included in the text communicated to the applicant under R. 71(3) EPC, but drawing sheets 8/18 to 18/18, which had in fact been previously withdrawn by the applicant, were also included. The applicant then approved the text intended for grant subject to minor amendments. The board held the appeal inadmissible on the ground that the appellant was not adversely affected. The facts of the case in hand differed in that no drawings at all, i.e. neither the requested ones nor any others, were included in the text communicated to the applicant under R. 71(3) EPC and the Druckexemplar, and in that no explicit approval was given, but approval was rather deemed to have been given. Thus, the board concluded there was no diverging case law and consequently no need to refer the case to the Enlarged Board of Appeal. See also chapter IV.A.2. "Approval of the text by the applicant".

In T 611/15 the opposition division maintained the patent in amended form based on auxiliary request VIII. The proprietor had argued that it had withdrawn only the auxiliary requests filed in writing before the oral proceedings, not the main request. However, the minutes stated that the representative of the proprietor announced that he would withdraw all other requests so that auxiliary request VIII as filed during the oral proceedings represented the main and sole request of the proprietor. In the absence of any request for correction of the minutes, the board assumed that these statements accurately reflected the state of the proprietor's requests. Given that the decision on this request was in favour of the proprietor it followed that the proprietor was not adversely affected by the decision. In T 611/15 hatte die Einspruchsabteilung das Patent in geänderter Form auf der Grundlage des Hilfsantrags VIII aufrechterhalten. Der Patentinhaber hatte argumentiert, dass er nur die vor der mündlichen Verhandlung schriftlich eingereichten Hilfsanträge zurückgenommen habe, nicht aber den Hauptantrag. Laut Niederschrift hatte jedoch der Vertreter des Patentinhabers erklärt, er werde alle übrigen Anträge zurücknehmen, sodass der in der mündlichen Verhandlung eingereichte Hilfsantrag VIII den Haupt- und auch den einzigen Antrag des Patentinhabers darstellte. Da kein Antrag auf Berichtigung der Niederschrift vorlag, ging die Kammer davon aus, dass die dortigen Aussagen den Status der Anträge des Patentinhabers exakt wiedergaben. Da die Entscheidung über diesen Antrag zugunsten des Patentinhabers ausfiel, war der Patentinhaber durch die Entscheidung folglich nicht beschwert.