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Case Law of the Boards of Appeal

 
 
3. Text submitted or agreed by applicant or patent proprietor - Article 113(2) EPC

Under Art. 113(2) EPC the EPO may consider and decide upon the European patent application or the European patent only in the text submitted to it, or agreed, by the applicant for or proprietor of the patent. Concerning Art. 113(2) EPC see also Chapter IV.B.3.2.3 "Decisions with no text submitted or agreed by the applicant (Art. 113(2) EPC)".

When taking its decision a board of appeal (or department of first instance) has no authority to order the grant of a European patent containing claims which are different in their content or interdependency from those submitted by the applicant (T 32/82, OJ 1984, 354). Art. 113(2) EPC 1973 is a fundamental procedural principle, being part of the right to be heard, and is of such prime importance that any infringement of it, even as the result of a mistaken interpretation of a request, has, in principle, to be considered to be a substantial procedural violation (T 647/93, OJ 1995, 132; see also T 32/82 and J 19/84). In any case, such violation occurs when the examining division did not make use of the possibility of granting interlocutory revision under Art. 109 EPC 1973 after the mistake has been pointed out in the grounds of appeal (T 647/93).

Art. 113(2) EPC does not give any right to an applicant in the sense that the EPO was bound to consider a request for amendment put forward by the applicant. The effect of the provision is merely to forbid the EPO from considering and deciding upon any text of an application other than that submitted to it or agreed by the applicant or proprietor (G 7/93, OJ 1994, 775; R 10/08, R 11/08).

Enshrined in Art. 113(2) EPC is the principle of party disposition, according to which it is the applicant's or patentee's responsibility to define the subject-matter of the application or the patent. This responsibility cannot be shifted to the EPO or other parties to the proceedings (R 14/10).