J 0020/85 (Missing claims) vom 14.05.1986

1. In a case in which an issue of fact arises between the European Patent Office and a party to proceedings before it, for example as to whether or not a particular document was filed on a particular day, evidence relating to it should be taken as soon as the issue of fact arises.

2. Article 113(1) EPC is of fundamental importance for ensuring a fair procedure between the European Patent Office and a party to proceedings before it, especially when such an issue of fact arises. A decision against a party to proceedings upon such an issue of fact can only properly be made by the European Patent Office after all the evidence on which such decision is to be based has been identified and communicated to the party concerned.

3. Although Article 117 EPC does not refer specifically to proceedings before the Receiving Section, that Section has power to take evidence.