3.2.4 Rectification of errors made by the receiving Office or the International Bureau (R. 82ter PCT)

The appeal in J 3/00 concerned the question whether the Receiving Section should have rectified, under R. 82ter PCT, a purported error of the EPO acting as receiving Office (RO/EPO) for the purposes of the regional phase before the EPO. Specifically, the Legal Board examined whether the filing date of the international application was incorrect due to an error made by the RO/EPO which was such that, had it been made by the EPO (as designated Office) itself, it would have to be rectified under the EPC (R. 82ter PCT). The international application had been filed two days before expiry of the priority period with the description and claims in Swedish by mistake. The RO/EPO accorded as the international filing date the day of receipt of the corrected, i.e. English-language, documents (Art. 11(2)(b) PCT) and furthermore cancelled the priority claim. The applicant argued that the RO/EPO should have warned it of the deficiency. The Legal Board found that the protection of legitimate expectations required the EPO to warn the applicant of any loss of rights if such a warning could be expected in all good faith (G 2/97, OJ 1999, 123). As the two relevant conditions were met, i.e. the deficiency was immediately identifiable on the face of the application in the course of the Art. 11(1) PCT check and the applicant was in a position to correct it at very short notice, the Legal Board decided that, as far as designations for the purpose of obtaining a European patent were concerned, the international filing date accorded by the RO/EPO had to be rectified under R. 82ter PCT.

For other cases relating to R. 82ter PCT, see J 6/00 (against a decision of the examining division refusing a request that the withdrawal of the priority claims made in the international application be treated as having no effect for the EPO) and J 10/04 (against a decision of the Receiving Section concerning the refusal of a request to correct the filing date and to recognise a US priority claim).