3.6. Amendments after the decision to grant

In T 798/95 the decision to grant the European patent was handed over by the formalities section of the examining division to the EPO postal service for notification. The request for amendment of the application under R. 86(3) EPC 1973 was filed on the same day at 6.47 pm, thus after completion of the proceedings. Referring to G 12/91 (OJ 1994, 285), the board held that a request for amendment under R. 86(3) EPC 1973 filed after completion of the proceedings up to grant before an examining division was to be disregarded, even if the filing of the request and the completion of the proceedings occurred on the same date. See also Guidelines H‑II, 2.6 – March 2022 version.

In T 646/20 the board noted in its catchword that further Member States could not be designated after grant. With reference to decision G 1/10 (OJ 2013, 194), the board concluded that in the interest of legal certainty, the patent in the version as granted should no longer be open to amendments and that the applicant had had "adequate means at his disposal" to remedy beforehand. In the board's view, it was incumbent on the applicant to verify the complete file in order to spot any inconsistencies it may wish to draw attention to. Inconsistencies related to text and the designated Member States in the communication under R. 71(3) EPC and not raised in response thereto must be considered as approved by applicant.