European Patent Office

T 0736/14 (Selecting invention to be examined/QUALCOMM) of 25.02.2016

European Case Law Identifier
ECLI:EP:BA:2016:T073614.20160225
Date of decision
25 February 2016
Case number
T 0736/14
Petition for review of
-
Application number
09163209.1
IPC class
H04L 27/26
Language of proceedings
English
Distribution
Distributed to board chairmen (C)
OJ versions
No OJ links found
Other decisions for this case
-
Abstracts for this decision
-
Application title
Frequency division multiple access for wireless communication
Applicant name
Qualcomm Incorporated
Opponent name
-
Board
3.5.05
Headnote
-
Keywords
Competence of the Legal Board of Appeal - (no)
Violation of principle of good faith - (no)
Correct exercise of first-instance discretionary power - (no)
Violation of right to be heard - (yes)
Remittal to first instance for further prosecution - (yes)
Reimbursement of appeal fee - (yes)
Catchword
If an applicant whose application is non-unitary responds unclearly and/or in a misleading way to an invitation from the examining division to designate which searched invention it wishes to prosecute further (e.g. by submitting a main request covering one invention and an auxiliary request covering the other invention searched), it cannot be automatically assumed that the applicant selected the invention covered by the main request for examination. Rather, the examining division must clarify, e.g. via a further communication, which of the searched inventions the applicant actually wants it to examine. Confronting the applicant with an irrevocable decision not to admit an auxiliary request covering one of the inventions searched, without giving an opportunity to comment on its admissibility beforehand, is regarded as a substantial procedural violation (see Reasons, point 3).
Citing cases
T 0861/12T 0578/13

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the department of first instance for further prosecution.

3. Reimbursement of the appeal fee is ordered.