5.4.3 Whether to apply R. 56 EPC or R. 139 EPC

The decisions below consider the application of the equivalent rules under the EPC 1973:

- R. 43 EPC 1973 (now R. 56 EPC), which, however, referred only to missing drawings. The reference to missing parts of the description was added in the EPC 2000; and

- R. 88 EPC 1973 (now R. 139 EPC), which provides, inter alia, that mistakes in any document filed with the EPO may be corrected on request. However, if the request concerns, inter alia, the description or drawings, the correction must be obvious in the sense that it is immediately evident that nothing else would have been intended than what is offered as the correction.

In J 19/80 (OJ 1981, 65) it was held that if a part of a drawing was missing, the missing part was not to be considered as a missing drawing for the purposes of R. 43 EPC 1973; the whole figure was to be considered as an incorrect drawing. The correction of drawings was dealt with in R. 88 EPC 1973. Moreover, the evidence required to support a request for correction of a drawing by adding a missing part had to be unambiguous. However, according to G 3/89 and G 11/91 (OJ 1993, 117 and 125), the parts of a European patent application or of a European patent relating to the disclosure (the description, claims and drawings) might be corrected under R. 88, second sentence, EPC 1973 only within the limits of what a skilled person would have derived directly and unambiguously, using common general knowledge, and seen objectively and relative to the date of filing, from the whole of these documents as filed. Such a correction was of a strictly declaratory nature and thus did not infringe the prohibition of extension under Art. 123(2) EPC 1973. Documents not meeting this condition might not be used for a correction under R. 88, second sentence, EPC 1973 even if they were filed together with the European patent application. These included, inter alia, priority documents, the abstract and the like.

In the explanatory remarks to EPC 2000 in CA/PL/06, it was explained that R. 56(1) EPC is not intended to apply to missing parts of the drawings. If the Receiving Section notes that a part of a drawing is missing, it will treat the application, for the purpose of R. 56 EPC, as if the complete drawing were missing and will invite the applicant to re-submit the complete drawing.

According to J 1/82 (OJ 1982, 293), if a sheet including two complete figures was late-filed, these could not be considered incorrect drawings for the purposes of R. 88 EPC 1973 – the late filing of one or more complete figures was dealt with in R. 43 EPC 1973.