Zusammenfassung von EPC2000 R 139 für die Entscheidung T0158/21 vom 04.11.2022

In T 158/21 the appellant requested in essence that the set of claims annexed as a pdf-file to the electronically filed application be replaced by the set of claims contained in the zip-file which was also attached to the application. The appellant submitted that the version of the claims contained in the pdf-file was meant for another divisional application filed one day later and that the error was visible from the file names containing the representative's reference numbers for the different applications. The board recalled that R. 139, first sentence, EPC allowed for the correction of linguistic errors, errors of transcription and mistakes in any document filed with the EPO. As a preliminary remark, the board observed that, in the present case, the request for correction was not directed to the correction of an error in the set of claims filed as a pdf-file. Instead it was aimed at the replacement of a document, i.e. the set of claims filed as a pdf-file, by another set of claims filed as a zip-file. Furthermore, the board noted that the set of claims contained in the zip-file was submitted as a "pre-conversion" file. A pre-conversion file was foreseen if a document attached to the application form had been prepared by conversion from a different electronic format. Hence, a pre-conversion file was taken into account only to solve problems caused by the conversion of document formats. In the present case the set of claims contained in the pdf-file did not show any sign of corruption. According to R. 139, second sentence, EPC when the request for correction concerns the description, claims 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. The board concurred with the appellant insofar as it appeared evident that an error had occurred when filing the present application in view of the different reference numbers used for the pdf- and the zip-file. However, it was by no means obvious whether the mistake laid in the filing of an incorrect set of claims as a pdf-file or whether the reference numbers themselves were incorrectly chosen. In view of the fact that even the kind of error could not be identified in an unambiguous way, it was also not immediately evident how it should be corrected. Thus, it was not evident that the correction offered, i.e. the replacement of the set of claims contained in the pdf-file by the set of claims contained in the zip-file, was in line with the original intention when filing the application in suit. In view of the above, the board refused the appellant's request for correction of the set of claims.