4.8.3 Correction of minutes

If a party was of the opinion that the minutes were incomplete or wrong, since essential submissions were not reflected at all in the file, it might request the opposition division to correct the minutes to preserve its rights (T 642/97; T 231/99; T 898/99; T 838/92; T 68/02). The same is true in proceedings before the examining division (T 937/07; see also T 2434/09).

In T 1005/08 the board held that, according to the consistent jurisprudence of the boards of appeal, it was in principle the department before which oral proceedings had been held (in the case at issue the opposition division) which was competent to correct its minutes of the oral proceedings.

In T 162/09, the board held that the parties and their representatives could be expected to check the minutes carefully, especially to ensure that nothing was missing, immediately on receipt and to point out any deficiency promptly, since the minutes were the only means of ascertaining what had occurred during the oral proceedings at first instance. If no request for correction had been made, the board had to assume that the minutes accurately reflected the course of the proceedings (see R 11/08).

In T 231/99 it was held that the board's responsibility for the decision on the validity of the patent did not extend to deciding on the accuracy of the minutes of first instance proceedings (see also T 1198/97). In T 508/08 the board stated that if the department of first instance (opposition division) saw fit to ignore its obligations (to respond to a request for correction of the minutes) there was nothing the board could do; it had no power to compel the division to fulfil them. In T 212/97 the board explained that only decisions could be contested. Since the minutes of oral proceedings were neither a decision nor part of the decision, they could not be "annulled" by the board of appeal (as already established in T 838/92). A procedural violation could only be said to have occurred if the limits of the minute-writer's discretion as to what he considered "essential" or "relevant" were overstepped, e.g. if a party's unambiguous statement of surrender were omitted from the minutes.

In T 1063/02 the board held that it could not order the amendment of the opposition division's minutes of oral proceedings unless they manifestly and definitely differed from the actual course of the proceedings.

In T 740/00 the appellant informed the opposition division of its opinion that the minutes did not reflect the actual conduct of the proceedings. Instead of examining whether the minutes actually fulfilled the requirements of R. 76(1) EPC 1973 and then deciding whether or not to correct them, the opposition division argued in essence that the minutes were correct because the minutes said so. The board considered such a reasoning circular and thus as not fulfilling the requirements of R. 68(2) EPC 1973, which required decisions of the EPO to be reasoned. This constituted a procedural violation (see also T 819/96).

In T 1721/07, the board refused the appellants' request that a summary they had drawn up of the parties' various arguments and the board's conclusions be added to the minutes of the oral proceedings. It observed that preparation of the minutes of oral proceedings was a task entrusted to the boards. This task could not be transferred or delegated, in whole or in part, to the parties, let alone just one of them. It also observed that no single party could be permitted to decide on or influence the content of the minutes.

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