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Case Law of the Boards of Appeal

 
 
2. Responsibility for formalities examination

Under Art. 16 EPC, the Receiving Section is responsible for the examination on filing and the examination as to formal requirements of European patent applications. It retains responsibility up to the time when the Examining Division becomes responsible for the examination of the European patent application under Art. 94 EPC (R. 10 EPC).

The limitation in time of the Receiving Section's responsibility was previously in Art. 16 EPC 1973. The move to the Implementing Regulations ensures greater flexibility in determining when competence passes within the EPO from one department to another.

The Receiving Section is also no longer limited to the EPO's branch in The Hague as it was under Art. 16 EPC 1973. According to T 1012/03, the amendments to Art. 16 and 17 EPC deleting the allocation of the Search Divisions and Receiving Section to the branch at The Hague clearly indicate that the EPC no longer restricts the competence of the President of the EPO to decide which transactions shall be carried out at Munich and which at The Hague.

In G 1/02 (OJ 2003, 165) the Enlarged Board of Appeal pointed out that Art. 90 EPC and Art. 91 EPC 1973 entrusted to the Receiving Section certain duties relating to formalities examination of applications on filing, and the section's decisions may give rise to a loss of rights (see Art. 91(3) EPC) which are appealable (see Art. 106 EPC). The Receiving Section is composed entirely of formalities officers who - just like their counterparts working with opposition divisions - receive specialist training but are not required to have studied a technical subject or law at university.

In J 18/84 (OJ 1987, 215) the Legal Board of Appeal distinguished the respective areas of responsibility of the Receiving Section and the Legal Division regarding the designation of the inventor. The examination of an initial designation of inventor complying with Art. 81 EPC 1973 fell exclusively to the Receiving Section as one of its formalities examination responsibilities under Art. 16 and 91 EPC 1973. (These responsibilities are now in Art. 16 and 90(3) EPC). However, once entries began in the Register of European Patents - which under Art. 127, 2nd sentence, EPC 1973 coincided with the publication of the European patent application - the Legal Division might be competent for disputed corrections.

In J 13/02, the board took the view that the fact that the EPC 2000 versions of Art. 16 to 18 EPC were already applicable in accordance with Art. 6 of the Revision Act did not alter the fact that the Receiving Section's competence came to an end once a valid request for examination has been made with the result that the examining division had to examine whether the application met the requirements of the EPC 1973 (Art. 94(1) EPC 1973 in conjunction with Art. 96(2), 97(1) and 97(2) EPC 1973).

See 5.5.3 below for the extent of competence of the Receiving Section in respect of requests for correction under R. 139 EPC.