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Case Law of the Boards of Appeal

 
 
b)
Late submission of deposit number 

According to R. 28(1)(c) EPC 1973, the application had to state the depositary institution and the file number of the deposited biological material. In G 2/93 (OJ 1995, 275) the Enlarged Board of Appeal held that the provisions of R. 28 EPC 1973 were subordinate to the requirements of Art. 83 EPC 1973. The indication of the file number (accession number) of a culture deposit in a patent application was substantive because, under the EPC, it was instrumental in enabling a person skilled in the art to carry out the invention. The Enlarged Board therefore held that, contrary to the ruling in J 8/87 (OJ 1989, 9), the information concerning the file number could not be submitted after expiry of the time limit set out in R. 28(2)(a) EPC 1973 (i.e. sixteen months after the date of filing of the application or, if priority is claimed, after the priority date).

As for the term "publication" within the meaning of R. 28(2)(a), second part of sentence, EPC 1973 in the context of a European application filed as an international one, see T 328/04.

See T 227/97 (OJ 1999, 495) for the board's decision that reestablishment of rights may be available for the time limit set by R. 28(2)(a) EPC 1973 and R. 13bis.4 PCT.