Zusammenfassung von EPC2000 R 140 für die Entscheidung T1846/20 vom 09.03.2023

In T 1846/20 the appeal was lodged by the patent proprietor (appellant) against the decision of the examining division refusing the request for the re-issue of the B- specification of the patent and the request for re-establishment of rights. The application for the patent was filed on 16 June 2016 in Chinese as an international application under the PCT. The application was published on 23 December 2015 and included sheets 1/3 to 3/3 of drawings. These drawings contained text in Chinese. When the application entered the European phase, the applicant checked the boxes in Form 1200P specifying that: the proceedings before the EPO were to be based on the application documents published by the International Bureau with all claims, description and drawings; and the translations of the international application documents, i.e. abstract, description, claims and any text in the drawings, in one of the official languages of the EPO were attached. However, no translation of text matter of the drawings was filed. On 5 April 2019, the examining division issued a communication under R. 71(3) EPC notifying the applicant about its intention to grant a European patent on the basis of the documents, with no mention of the drawings. The text intended for grant, i.e. the Druckexemplar, not containing any sheet of drawings, was attached to the communication. On 25 July 2019, the examining division issued the decision to grant a European patent with the documents indicated in its communication. No appeal against this decision to grant was filed. By letter dated 4 November 2019, the applicant stated that the applicant's name in the B-specification of the patent was incorrect. Moreover, it noted that the B- specification of the patent did not include the drawings present in the PCT application. It requested re-issue of the B-specification of the patent, including the correct applicant's name and the drawings filed with this letter. Drawings sheets 1/3 to 3/3 corresponding to sheets 1/3 to 3/3 as published under the PCT with Chinese text matter translated into English were enclosed. The examining division informed the appellant that the applicant's name had been corrected as requested, but that the request to correct the patent was not admissible. This decision was appealed. The board held that since no errors had occurred in the process of converting the version as intended for grant into the B-specification, the discussion of affecting third parties was irrelevant. When receiving the communication under R. 71(3) EPC clarifying the examining division's position on the text intended for grant, the appellant should have realised that to safeguard its interests it should request the inclusion of the drawings. However, the appellant had failed to do this and instead approved the proposed text and did not file any appeal. As a consequence, the decision to grant became final (Art. 97(1) and (3) EPC)." Decision T 1003/19 invoked by the appellant concerned a case in which an appeal against the decision to grant a European patent had been filed. In contrast, in the current case, the appellant did not file any appeal against the decision to grant. Therefore, the grant decision became final, and the granted patent ceased to be within the jurisdiction of the EPO (G 1/10). As stated in G 1/10, from its grant, a European patent becomes, subject only to the possibility of later EPO proceedings by way of opposition or limitation, a bundle of national patents each of which falls within the exclusive jurisdiction of a designated Contracting State (see Art. 2(2) EPC). Therefore, since in the current case the decision to grant has become final, the EPO, except in opposition or limitation proceedings, has no jurisdiction to change the text of the granted patent or deal with the request for correction. The board concluded that the request for re-issue of the B-specification of the patent by including sheets 1/3 to 3/3 of the drawings as filed on 4 November 2019 was not allowable in view of decision G 1/10.