3.3.2 No obligation to scrutinise submissions for deficiencies

J 7/97 concerned a European patent application filed with the EPO by fax. One page of the description was missing, whilst another was transmitted twice. The board took the view that a single page missing from a lengthy description was not an "obvious error" under the case law, at least in the circumstances of this particular case. The applicant could not in good faith expect the EPO to check application documents for completeness on the very day it received them. Nor could any such obligation be inferred from the President's decision on fax transmissions (OJ 1992, 299), in which Art. 3 (now Art. 6, Decision of the President of the EPO of 12 July 2007, OJ SE 3/2007, 7) required the filing office to notify the sender as soon as possible "where a document transmitted ... is illegible or incomplete"; the latter adjective clearly referred to the transmission rather than the actual document.

In T 585/08 the board found that the deficiency in the request for re-establishment (insufficient statement of grounds and facts, R. 136(2) EPC) had not been readily identifiable. First, a number of letters had been filed, and second, it would only have been possible to detect the deficiency if these letters had been studied carefully. In the board's view, the principle of good faith did not impose any obligation on the EPO to scrutinise several letters on file to establish whether grounds and facts with respect to a request for re-establishment were missing. The board distinguished this case from T 14/89 (OJ 1990, 432) in which the lack of substantiation of the request for re-establishment had been readily identifiable.

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