T 0739/05 (Fuel oil/INFINEUM) vom 03.11.2005

Main request: Extension beyond parent application (no)
Extension beyond application as filed (no)
Suspension of the further prosecution of a case without a corresponding request by a party until a decision of the Enlarged Board of Appeal pertaining to a parallel point of law raised in another T-case is issued (no)

In a case where the principle of the protection of legitimate expectations in pending cases is applicable with regard to an established practice of the European Patent Office as published in the Guidelines for Examination in the European Patent Office and where there is no corresponding request by a party, there is no reason to suspend the further prosecution until a decision in a case pending before the Enlarged Board of Appeal is issued, even though the important point of law raised by the underlying T-case (referral) may concern the case under consideration.
This ensues from the above principle according to which in pending cases where existing long-standing practice laid down in publications of the European Patent Office might be overruled by a new decision of the Enlarged Board of Appeal the parties may rely on the previous practice until the new decision is made available to the public - and this is in line with consistent case law of the Boards of Appeal (point 6 of the reasons).