2. Applicability of the principle of the protection of legitimate expectations
For applicants to be able to claim that they have relied on incorrect information in accordance with the principle of good faith, it has to be established that the erroneous information from the EPO was the direct cause of the action taken by the applicants and objectively justified their conduct (T 460/95 of 16 July 1996 date: 1996-07-16; G 2/97, OJ 1999, 123; J 5/02; J 5/07; J 10/17). According to J 27/92, it must be established that, on an objective basis, it was reasonable for the appellant to have been misled by the information. Whether or not this was the case would depend on the individual circumstances of each case.
In T 321/95 the appellant argued that it had an oral agreement with the primary examiner. No such agreement was derivable from the file. Thus, the appellant's arguments on an alleged violation of good faith were no more than the appellant's personal opinion and a mere "miscommunication" between the primary examiner and the applicant.
In T 343/95, the board considered the contents of a telephone conversation on which the appellant based its arguments with respect to an alleged violation of the principle of good faith. The board held that in a case like the one in hand it was sufficient if the board determined the contents of the conversation on the basis of a balance of probabilities. The conditions for the application of the principle of legitimate expectations were fulfilled (but see T 188/97, where the board could not establish the facts surrounding a telephone conversation with sufficient certainty to invoke the principle of legitimate expectations).