Abstract on EPC2000 R 140 for the decision T0806/21 of 17.06.2022

In T 806/21 the board held that, as ruled in decision G 1/10, R. 140 EPC is not available to correct patents. G 1/10 does not restrict the scope of the exclusion of the applicability of the rule in any way. The appeal of the patent proprietors was against the decision of the examining division to refuse correction of the decision to grant. The decision under appeal acknowledged that the omission of pages 85 to 105 was an error of the examining division, which the patent proprietors did not raise with the examining division. However, the board held that the two cases that the appellants had relied on, T 1003/19 and T 2081/16, differed from the case at hand in that in those cases the decision to grant had not been final and had been appealed within the time limit for appeals. Decision G 1/10 clearly expressed that, the exclusion of the applicability of R. 140 EPC was not restricted in scope in any way. The board therefore could not accept an interpretation of decision G 1/10 according to which, as argued by the appellants, R. 140 EPC could be applied to correct a patent if the communication under R. 71(3) EPC did not reflect the true intention of the examining division because it included an unintentional amendment to the application as filed. There was nothing in G 1/10 even hinting at such an approach. On the contrary, the arguments for the exclusion of the applicability of the rule, in particular legal certainty, equally applied to this situation. In addition, decision G 1/10 (point 11 of the Reasons) appeared to eliminate any possible doubt by stating: "If, given the opportunity to check the patent text before approving it, an applicant does not draw any errors to the attention of the examining division and thus ensure his approval is limited to the correct text, then the responsibility for any errors remaining in that text after grant should be his alone, whether the error was made (or introduced) by him or by the examining division". This was the situation in the present case. The appeal was therefore dismissed.