Zusammenfassung von EPC2000 R 140 für die Entscheidung T0255/22 vom 10.05.2023

In T 255/22 the board held that it had no competence to correct or amend under R. 140 EPC the reasons given by a first-instance department in the written decision, or to order such a correction or amendment. The reasons for this were essentially twofold and rely on the Enlarged Board's findings in G 8/95. First, for a correction pursuant to R. 140 EPC, the manifest intention of the deciding body is decisive (see G 8/95, point 3.2 of the Reasons) and the board cannot interfere with this intention. This was in accordance with the Enlarged Board's finding that the competence to correct errors in a decision under R. 140 EPC lies with the body which had given the decision (G 8/95). As pointed out in G 8/95, the principle underlying R. 140 EPC was that an obvious clerical mistake can be corrected by the deciding body responsible for the decision in a situation where the decision does not express its manifest intention. It would go against this principle if the board could correct or amend the wording of the reasons in a way which deviated from the opposition division's manifest intention. Doing so should not be within the power of a board. Second, the reasons given by the deciding body represent the very substance of the decision, which can be challenged by a party only in an appeal against this decision. If there is concern as to the substance of a decision, the correct way of addressing a deficiency therein is to appeal this decision. An appeal against the refusal to correct the decision under R. 140 EPC is not the correct avenue to pursue. In its second and third requests, the appellant no longer requested that an amendment to the reasons be ordered. Rather, the board was requested to "confirm" that a specific wording in the main decision was an obvious mistake under R. 140 EPC (and, as an auxiliary measure, it was asked to confirm what the wording should be, namely the one suggested by the appellant), and the board should also "confirm" that the absence of a specific wording in the main decision was an obvious mistake under R. 140 EPC. These requests also failed. The board held that it had no competence to confirm that an "obvious mistake" within the meaning of R. 140 EPC had been made in the reasons given by a first-instance department in the written decision. The reason for this was again that the board could not interfere with the manifest intention of what the opposition division had - in its view and as confirmed in its communication - correctly written in the reasons of the decision. Yet it was this that the board would have done if it had "confirmed" the existence of obvious mistakes in the reasoning given by the opposition division. This also applied to the request for the board to "confirm" what the party believed the wording of the reasons should be. In addition, as also set out above, as long as it concerns the substance of the decision, an appeal against the refusal to correct the decision under R. 140 EPC is not the correct avenue to pursue. Lastly, the board held that the Boards of Appeal have no competence to correct or amend the content of the minutes of oral proceedings before a first-instance department, or to order such a correction or amendment. The correction of the minutes falls neither under R. 139 EPC nor under R. 140 EPC: The minutes are not a "document filed with the European Patent Office" within the meaning of R. 139 EPC. The board noted that, in R 10/08, the Enlarged Board referred to R. 139 EPC in the context of the correction of the minutes. However, the text of R. 139 EPC was clear in that it only referred to documents filed with the EPO, which is not the case for the minutes. The minutes are also not a "decision" within the meaning of R. 140 EPC. The case law of the Boards of Appeal is consistent in that the minutes do not constitute a decision, nor are they part of the decision announced at the oral proceedings (see T 613/14). That the minutes are not a "decision" was also confirmed by the Enlarged Board in R 4/18. The present board agreed with this case law.