9.5. Substantial procedural violation
9.5.1 Violation must be of a procedural nature
|
You are viewing the 9th edition (2019) of this publication; for the 10th edition (2022) see here |
In T 12/03 the board stated that a substantial procedural violation is an objective deficiency in the procedure in the sense that the rules of procedure have not been applied in the manner prescribed by the Convention. According to J 6/79 (OJ 1980, 225), the giving of incorrect information by the EPO about the rules of procedure, which, if followed by the applicant, could lead to the same consequences as the incorrect application of those rules, could also be considered as lying within the scope of a "procedural violation". In T 690/06 the board held that an error of judgment on substantive issues by the examining division did not constitute a "procedural" violation (see also T 698/11, T 658/12). See also in this chapter V.A.9.5.8.
In T 990/91 the board held that the lack of opportunity to reply to a new argument from the examining division in its decision to refuse the application that was supererogatory and incidental could not be considered to be a procedural violation (see also T 1085/06).
In T 68/16 the board noted that the opposition division had not used the problem-solution approach. The board stated that this fact in itself did not constitute a substantial procedural violation. The problem-solution approach is not enshrined in the EPC and its use is not mandatory. The board agreed that, as a rule, a division that does not use the problem-solution approach should indicate its reasons for doing so, if only to dispel the impression that it acts arbitrarily. However, the Guidelines for Examination only state that any "deviation from this approach should be exceptional" and do not require a justification (see Guidelines G‑VII, 5). Consequently, the board found that a division that, in an exceptional situation, chooses not to use the problem-solution approach and not to explain its choice does not commit a substantial procedural violation.
- T 683/14
The examining division's error was of a substantive nature. The procedural consequences thereof were caused exclusively by the implementation of the erroneous substantive position.
- Case law 2019
-
In T 683/14 the examining division had implemented its erroneous position that the confidentiality document submitted on 1 August 2013 could not be taken into account because the debate had been closed and a "decision" had been taken during the oral proceedings of 10 December 2012. The board stated that the examining division had erred in two respects. Firstly, the oral proceedings were not terminated by a formal decision. Secondly, even if the debate had been formally closed, it could have been reopened. The board cited T 595/90: "Observations submitted [after the closing of the debate] could only be taken into account if the Board reopened the debate (Art. 113 EPC) which depends on its discretion." The board was of the view that analogous considerations applied to the EPO departments of first instance. The board found that the examining division did commit an error, but a substantive and not an (independent) procedural one. The procedural consequences were caused exclusively by the implementation of the division's erroneous substantive position. After the applicant filed an appeal against the decision to refuse the European patent, the examining division rectified their decision to refuse. The request for reimbursement of the appeal fee at 50% under R. 103(2) EPC was refused on the grounds that by rectifying the decision the examining division had set the decision under appeal aside and had allowed the appeal. As such the applicant's request for the withdrawal of its appeal had no object and in the absence of a pending appeal that might be withdrawn, R. 103(2) EPC did not apply.