T 1003/19 (Failure to communicate the text intended for grant - missing drawing sheets) of 30.08.2019
- European Case Law Identifier
- ECLI:EP:BA:2019:T100319.20190830
- Date of decision
- 30 August 2019
- Case number
- T 1003/19
- Petition for review of
- -
- Application number
- 11846831.3
- Language of proceedings
- English
- Distribution
- Distributed to board chairmen (C)
- Download
- Decision in English
- OJ versions
- No OJ links found
- Other decisions for this case
- -
- Abstracts for this decision
- -
- Application title
- CO-CURRENT AND COUNTER CURRENT RESIN-IN-LEACH IN GOLD LEACHING PROCESSES
- Applicant name
- Barrick Gold Corporation
- Opponent name
- -
- Board
- 3.3.05
- Headnote
- -
- Relevant legal provisions
- European Patent Convention Art 108European Patent Convention Art 113(2)European Patent Convention Art 97(1)European Patent Convention R 71(3)European Patent Convention R 71(5)European Patent Convention R 73(1)
- Keywords
- Admissibility of appeal - appellant adversely affected despite decision to grant a patent
Fundamental procedural defect - patent granted without agreement on the text for grant - Catchword
- 1. Rule 71(5) EPC only applies where the text intended for grant has been communicated to the applicant according to Rule 71(3) EPC (see Reasons 2.4).
2. The fact that the list of documents intended for grant neither corresponds to any request of the applicant nor to any amendment explicitly suggested by the examining division is sufficient to indicate that the communication under Rule 71(3) EPC does not contain the text intended for grant; the existence of discrepancies between the text of the communication and the "Druckexemplar" may be another indication (see Reasons 2.4.4).
3. Differentiation from G 1/10 (see Reasons 4).
4. Where the applicant could have noticed an apparent discrepancy between the text of the communication under Rule 71(3) EPC and the "Druckexemplar", the reimbursement of the appeal fee is not equitable by reason of a substantial procedural violation (see Reasons 5).
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 with the order to grant a patent on the basis of the following documents:
- claims 1 to 13 as filed in electronic form on 30 August 2016;
- description pages 1 to 16 as filed in electronic form on 7 June 2018;
- drawing sheets 1/7 to 7/7 as published.
3. Appellant's request for refund of the appeal fee is rejected.