Abstract on EPC2000 Art 113(1) for the decision T1456/22 of 13.03.2023

In T 1456/22 the appeal was against the decision of the examining division to grant the patent. The applicant had requested the postponement of the examining division's decision to grant, as it wished to wait until the Unitary Patent system was in effect. The applicant had also requested that, only if the deferment request was refused, the patent be granted anyway. The formalities officer of the examining division had responded to the applicant's request in a letter dated 28 October 2021. This letter stated that the request for postponement had been rejected because there was no certainty as regards the start date of the Unitary Patent system. A few days later, the examining division issued its decision to grant the patent. In its decision, the examining division made no reference to the applicant's request to defer grant. According to the board, the communication of the formalities officer dated 28 October 2021 set out why the request for delay could not be allowed. It was not a decision, but nevertheless, in sending it, the formalities officer had acted beyond the powers entrusted under R. 11(3) EPC. A communication of this nature should have been sent by the examining division itself, setting a clear date for the applicant to respond. The fact that the decision to grant overlooked the higher-ranking request for deferment was a further procedural violation, namely a further breach of the applicant's right to be heard under Art. 113(1) EPC. The decision under appeal was set aside and the case remitted to the examining division for further prosecution.