Must the model be considered? Procedure

It is for the competent division to decide whether to take evidence by way of inspection of a model. If it considers this to be necessary, it must take a decision in the form of an order to take evidence (see E-IV, 1.4), setting out the relevant facts to be proved as well as the date, time and place of the inspection.

Where possible, the inspection is to be carried out on the premises of the EPO. However, if in view of the characteristics of the model (e.g. form, size, material) or due to security constraints an inspection cannot be carried out on EPO premises (see also the Notice from the EPO dated 20 December 2016, OJ EPO 2017, A6), the model may be inspected at a different location. In particular if such undertakings are located far away, the division may commission one of its members to carry out the inspection on its behalf (see E-IV, 1.3).

In accordance with Rule 124(1), minutes must be taken, including the essential aspects and the result of the inspection.The Division decides whether it needs to take evidence by inspection (Rule 117, first sentence), i.e. whether to consider the model at all.

Even if the Division does inspect the model, the EPO is not obliged to keep it. The party will keep the model, in his own interest, for subsequent proceedings.

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