T 0387/25 (HOT STAMPING PROCESS/Ironovation Materials Technology and Bengang Steel Plates) of 06.08.2025

Admissibility of appeal - party adversely affected by decision (yes)
Basis of decision - text submitted or agreed by patent proprietor (no)
Basis of decision - substantial procedural violation (yes)
Interlocutory revision - department of first instance should have rectified decision (yes)
Referral to the Enlarged Board of Appeal - (no)
Reimbursement of appeal fee - (yes)

1. It is not sufficient that an applicant, having received a communication formally referring to Rule 71(3) EPC, paid the required fee and filed the required translations. The legal consequence of Rule 71(5) EPC, i.e. the deemed approval of the notified text, only arises if the communication sent also complies with the substantive requirements of Rule 71(3) EPC, i.e. if it actually contains the text in which the examining division intended to grant the patent, on the basis of the documents filed by the applicant, possibly supplemented by individual marked amendments (see points 1.4 and 1.5 of the Reasons).
2. It has been established case law since T 1003/19 that an examining division's error in compiling the documents intended for grant in a communication under Rule 71(3) EPC that makes a clearly unintentional omission of part of the documents proposed by the applicant for grant as indicated in the applicant's last request can still be corrected if the applicant files an appeal against the subsequent grant of the patent within the time limit under Article 108 EPC, at least if the applicant did not explicitly consent to the incorrect compilation.
3. A referral to the Enlarged Board of Appeal is not therefore required either to ensure uniform application of the law or to align the case law and Guidelines (see points 3.1 to 3.9.5 of the Reasons).