2.4.2 Party adversely affected (Article 107 EPC)
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(i) Patent applicant adversely affected
In J 12/83 (OJ 1985, 6) the board found that an applicant for a European patent might be "adversely affected" within the meaning of Art. 107 EPC 1973 by a decision to grant the patent, if the patent was granted with a text not approved by him under Art. 97(2)(a) EPC 1973 and R. 51(4) EPC 1973. In J 12/85 (OJ 1986, 155) the board held that he could be "adversely affected" within the meaning of Art. 107 EPC 1973 only if the grant decision was inconsistent with what he had specifically requested (see also T 114/82 and T 115/82, both OJ 1983, 323 and T 1/92, OJ 1993, 685).
An applicant was 'adversely affected' and thus able to file an appeal where the examining division had rectified its decision but refused to grant reimbursement of the appeal fee (J 32/95, OJ 1999, 733).
The grounds forming the basis of a decision on rectification should not be interpreted to mean only the legal basis of the decision, but also the factual reasons supporting the legal basis. An applicant adversely affected by the factual basis was thus considered adversely affected in T 142/96.
In J 17/04 the board found that although the notice of appeal only referred to a correction of the decision under appeal under R. 88 and 89 EPC 1973, it made therewith (implicitly) the allegation that the decision under appeal incorrectly limited the regional scope of the patent and that this decision should be set aside. The board was therefore satisfied that the appellant had sufficiently claimed to be adversely affected and the appeal was admissible.
According to T 1351/06, a subsidiary request is only valid if the main request or higher-ranking subsidiary requests are not granted. Under Art. 113(2) EPC 1973, the EPO was bound by the applicant's requests. In the case in point, the main request had not been withdrawn and therefore remained pending. Consequently, the decision to grant a patent on the basis of the subsidiary request was contrary to Art. 113(2) EPC 1973. The appellant had therefore been adversely affected under Art. 107 EPC 1973.
(ii) Patent applicant not adversely affected
In J 5/79 (OJ 1980, 71) the board ruled that an applicant whose priority right was found to have lapsed because he failed to file the priority documents was no longer adversely affected if re-established in his rights before the application was published.