3. Antrag auf Überprüfung nach Artikel 112a EPÜ

Catchword: 

1. "Proceedings" to be re-opened under Article 112a(5) EPC following an allowable petition are limited to rectifying the defect found according to the review decision. The present proceedings as re-opened by the Enlarged Board in R 3/22 are thus not the appeal proceedings, but "ancillary proceedings" with the limited purpose to decide on the request for correction of the withdrawal of the appeal (see point 2 of the Reasons).  2. Rule 139 EPC is applicable only if proceedings before the EPO for some other purpose are pending when the request for correction is received by the EPO. The request for correction is inadmissible if received when no such proceedings are pending (see point 3 of the Reasons).  3. A patent application subject to the examining division's refusal, which is in turn subject to an appeal that has been withdrawn, is not "pending" within the meaning of Rule 36(1) EPC (see point 4 of the Reasons).

Catchword:

In a situation such as the present case - where the board does not react in a recognisable and explicit manner to an intended objection under Rule 106 EPC - a diligent party should normally insist on a discernible response from the board. Failure to do so will leave the party with an indication that weighs against its case (Reasons 16).

Catchword:

1. The Enlarged Board of Appeal affirms its previous decisions R 8/15 and R 10/18. 2. Catchword 1, second paragraph, of R 10/18 reading: "Article 113(1) EPC is infringed if the board does not address submissions that, in its view, are relevant for the decision in a manner adequate to show that the parties were heard on them, i.e. that the board substantively considered those submissions..." is complemented as follows: the requirement that "the Board substantively considered those submissions" should be given the meaning that "the Board considered the contents of those submissions", with this consideration comprising matters - pertaining to admittance of facts, evidence and requests, and/or - relating to substantive law, i.e. the merits of a case. (See Reasons, point 2). 3. Article 12(4) RPBA 2007 is in line with Articles 114(1) and 113(1) EPC. (See Reasons, point 3.2.2(a) in fine.)