b) Patent applicant 

(i) Decision to grant the patent

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 (R. 71(3) EPC) (see also J 12/85, OJ 1986, 155; T 114/82 and T 115/82, both OJ 1983, 323 and T 1/92, OJ 1993, 685).

In T 1003/19 the appellant was adversely affected despite the decision to grant a patent. The granted version of the patent corresponded neither to a text submitted by the applicant nor to a text agreed by it, nor to a text deemed to have been approved by it. There was, therefore, a discrepancy between the applicant's request and the decision of the examining division. R. 71(5) EPC only applied where the text intended for grant had been communicated to the applicant according to R. 71(3) EPC. In the board's view, this was not the case, where there was sufficient evidence to conclude that the text referred to in the communication under R. 71(3) EPC did not reflect the true will of the examining division. See also T 2081/16.

Following T 1003/19 and T 2081/16, the board in T 408/21 stated that R. 71(5) EPC did not apply in this case either, as in the step preceding the deemed approval the applicant had to be informed of the text in which the examining division intended to grant the patent according to R. 71(3) EPC. Although the (then) applicant received a R. 71(3) EPC communication, the documents indicated were not those which the examining division intended to grant.

In T 2277/19 the board stated that the appellant was not adversely affected by the decision to grant a patent. The board did not follow the approach taken in T 1003/19 and T 2081/16. In the board's judgement, R. 71(3) EPC imposed on the applicant a duty to check and verify the text. The fact that an applicant did not exercise its right to request amendments under R. 71(6) EPC could only be interpreted as approval of the communicated text, i.e. the text intended for grant.

In T 265/20 the board found that 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 referred to T 2277/19 (see above), 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, 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.

In T 646/20 the applicant had approved the text intended for grant and the corresponding bibliographical data. The appellant filed an appeal against the decision to grant and requested correction of the designation of member states and the addition of further states. The board held that the applicant's approval in response to the notification under R. 71(3) EPC also related to the designated member states, and the decision to grant subsequently rendered by the examining division matched the contents of the notification and the applicant's approval. The board concluded that the appellant was not adversely affected.

For more details on this, see also chapter IV.B.3.2. "Approval of the text by the applicant."

(ii) Other cases

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, the appellant 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.

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.