T 0232/85 (Retroactive change in the language of proceedings) 06-11-1985

1. The request for a change in the language of proceedings is to be allowed under Rule 3(1) EPC. Under this provision the EPO may, on the request of the applicant for or proprietor of a patent, and following consultation of the other parties to the proceedings, allow the language of the proceedings to be replaced by one of its other official languages as the new language of the proceedings. The appellants' request is sufficiently well founded, since they are represented in the appeal proceedings by a new representative whose mother tongue is German (cf. Guidelines for Examination in the EPO, Part A, Chapter VIII, 1.3; Haertel, Gemeinschafts- kommentar, Art. 14, Anmerkung 38).

2. The Board of Appeal has allowed the change in the language of the proceedings with effect from the day on which the request was received. The wording of Rule 3(1) EPC does not specifically provide for such a decision but it also does not exclude it. The Board of Appeal considers a retroactive change in the language of the proceedings to be allowable, at least where this is justified in a particular case on grounds of equity.

3. The request for a change in the language of proceedings received by the EPO on 29 June 1985 fell within the competence of the Examining Division. The proceedings were pending before the Examining Division until the appeal was remitted to the Board of Appeal in accordance with Article 109(2) EPC on 12 September 1985. The Examining Division therefore could and should have decided on the request. This is not precluded by the fact that after an appeal is filed the authority which has taken the contested decision has to refrain from any comment as to its merit where it does not wish to allow the appeal (cf. Article 109(2) EPC). A decision on the request for a change in the language of proceedings under Rule 3(1) EPC contains no comment as to the merits of filing the appeal or of the content of the contested decision. It is rather a decision on a procedural request which is in no way connected with the filing of the appeal as such. Since the period for filing the statement of grounds for appeal expired on 15 July 1985, prompt handling of the request for a change in the language of proceedings was called for. The applicants could also trust that their request, which was of crucial importance for the continuation of the proceedings, would be decided immediately, especially since a decision on the sufficiently well-founded request did not present any particular difficulties. The Examining Division could therefore have allowed the request before the statement of grounds for appeal was filed on 12 July 1985. The fact that the Examining Division failed to use that opportunity to decide on the request, on the grounds that it wanted to leave the decision to the Board of Appeal, cannot in fairness be to the applicants' disadvantage. For this reason the Board of Appeal has allowed the change in the language of proceedings with effect from the date on which the request was received.