T 0114/93 17-01-1994

I. European application No. 87 104 668.6 was refused by a decision of the Examining Division dated 12 November 1992.

According to the decision, the applicant had been notified by a communication dated 24 July 1992 that the requests, received on 5 May 1992 and 11 May 1992, to amend the application documents could no longer be taken into account because the applicant had already given his binding approval to the text intended to serve as the basis for grant (cf. letter filed on 6 February 1992 and communication pursuant to Rule 51(6) EPC dated 27. February 1992).

Since the request had not been dropped, there was no text to serve as a basis for the grant of a European patent (Article 113(2) EPC), and the application did not therefore meet the requirements of the EPC.

II. On 14 January 1993 a Notice of Appeal against the above decision was filed, together with payment of the prescribed fee.

In the concurrently filed Grounds of Appeal, the Appellant argued that the approved text contained some obvious errors the correction of which was allowable according to Rule 88 EPC.

At this stage the Appellant sought the grant of a patent on the basis of the approved text incorporating the corrections requested with the petitions filed on 5 May 1992 and/or 11 May 1992 (main and first auxiliary requests) or on the basis of the text without these corrections (second auxiliary request). Reimbursement of the appeal fee was also requested.

III. In a communication dated 22 June 1993 the Board expressed the provisional view that at least certain of the petitions were not requests for correction but for amendment. As to the corrections, however, there were doubts as to their allowability under Rule 88 EPC in that it was neither evident that any error had occurred nor that nothing else could have been intended than what had been offered as the correction. As to the amendments, these appeared to arise solely as a result of an earlier, incomplete amendment, which itself had only been requested once the Rule 51(4) EPC communication had issued.

Consequently, even if the allowance of the amendments were not precluded on the ground of lateness, the degree of legitimate interest of the Appellant had to be balanced against that of the administrative interest of the EPO and the Board was not minded to allow them (Rule 86(3) EPC), considering that the deficiencies of the approved text did not materially affect the patentability. If the Appellant were of a different view with regard to that latter point, the possibility of opposing his own patent was open to him.

IV. With a letter filed on 31 August 1993 the Appellant requested the grant of a European patent on the basis of the application documents to which the Examining Division had given its consent on 27 February 1992 (corresponding to the previous second auxiliary request).