8.10.3 Correction of minutes

It is the boards' settled case law that parties and their representatives are expected to check minutes carefully as soon as they receive them, especially to ensure that nothing is missing and that they are accurate, and to point out any deficiency promptly, since the minutes are the only means of ascertaining what actually occurred during the oral proceedings at first instance (T 1679/17). If a party was of the opinion that the minutes were incomplete or wrong, since essential submissions were not reflected at all in the file, that party might request the opposition division to correct the minutes to preserve the party’s rights (T 642/97, T 231/99, T 898/99, T 68/02, T 99/08). The same is true in proceedings before the examining division (T 937/07, T 2434/09). Concerning the boards of appeal, see T 1934/14 of 8 October 2018 date: 2018-10-08, T 888/17.

In T 162/09 the board held that the parties and their representatives could be expected to check the minutes carefully, especially to ensure that nothing was missing, immediately on receipt and to point out any deficiency promptly, since the minutes were the only means of ascertaining what had occurred during the oral proceedings. See also R 6/14.

In T 1891/20 of 16 May 2022 date: 2022-05-16 the board recalled that a request for correction of the minutes has to be submitted promptly after their receipt by the parties (see R 6/14). The board understood this to require an immediate action from a party, i.e. to submit a request for correction of the minutes in the shortest time possible after their receipt. This ensured that the relevant facts and submissions were still fresh in the minds of the members of the deciding body and, if applicable, the other party or parties (see also R 2/23). The contents of the written decision following oral proceedings did not have any bearing on whether the minutes of oral proceedings were incorrect or incomplete. The respondent therefore erred when stating that it was "compulsory" to wait for the written decision before submitting a request for correction of the minutes. Such conduct was incompatible with a party's obligation to request correction of the minutes in the shortest time possible after their receipt.

In T 690/09 the appellant had not questioned the correctness of the minutes; the board held that the correctness of the minutes was therefore not formally in doubt and it had to consider the minutes as correctly reflecting the course of the oral proceedings. See also T 162/09, T 1138/12, T 1227/14, T 320/15.

In T 1005/08 the board held that, according to the consistent jurisprudence of the boards of appeal, it was in principle the department before which oral proceedings had been held which was competent to correct its minutes of the oral proceedings (see also T 2150/15). Where parties consider the minutes of oral proceedings to be incomplete or wrong because essential submissions are not or inaccurately reflected, it is their own responsibility to ensure their rights are safeguarded by asking the department that issued them to correct them accordingly (T 1481/19).

In T 231/99 it was held that the board's responsibility for the decision on the validity of the patent did not extend to deciding on the accuracy of the minutes of first-instance proceedings (see also T 1198/97, T 162/09, T 2150/15). In T 508/08 the board stated that if the department of first instance (opposition division) saw fit to ignore its obligations (to respond to a request for correction of the minutes) there was nothing the board could do; it had no power to compel the division to fulfil them (see also T 803/12, T 2150/15).

In T 212/97 the board explained that only decisions could be contested. Since the minutes of oral proceedings were neither a decision nor part of the decision, they could not be "annulled" by the board of appeal (see also T 838/92, T 68/02). A procedural violation could be said to have occurred if the limits of the minute-writer's discretion as to what they considered "essential" or "relevant" were overstepped, e.g. if a party's unambiguous statement of surrender were omitted from the minutes.

Citing R 7/17, T 212/97, T 642/97, T 468/99 and T 1891/20, the board in T 1482/21 recalled that it was in the discretion of the minute writer what to consider "essential" or "relevant" under R. 124(1) EPC. The board added that it was responsible for deciding what needs to be recorded in the minutes, not the parties (T 468/99, T 1721/07), and that a summary of the arguments made by the parties during the oral proceedings was usually not included in the minutes (T 263/05, T 1721/07). It was thus neither incomplete nor incorrect that the minutes stated that, after discussion on the need for adaptation, the board "provided the parties with its conclusion on the required adaptations".

In T 1063/02 the board held that it could not order the amendment of the opposition division's minutes of oral proceedings unless they manifestly and definitely differed from the actual course of the proceedings.

In T 740/00 the appellant informed the opposition division of its opinion that the minutes did not reflect the actual conduct of the proceedings. Instead of examining whether the minutes actually fulfilled the requirements of R. 76(1) EPC 1973 and then deciding whether or not to correct them, the opposition division argued in essence that the minutes were correct because the minutes said so. The board considered such a reasoning circular and thus as not fulfilling the requirements of R. 68(2) EPC 1973, which required decisions of the EPO to be reasoned. This constituted a procedural violation (see also T 819/96).

In T 4/00 the board held that the decisions on the correction could not be taken by the formalities officer as that would be contrary to the requirements of R. 76(3) EPC 1973 (R. 124(3) EPC), from which it was clear that only members of the opposition division bore responsibility for the minutes.

In T 1721/07 the board refused the appellants' request that a summary they had drawn up of the parties' various arguments and the board's conclusions be added to the minutes of the oral proceedings. It observed that preparation of the minutes of oral proceedings was a task entrusted to the boards. This task could not be transferred or delegated, in whole or in part, to the parties, let alone just one of them (see also T 433/11).

In T 980/19 dated 27 April 2022 date: 2022-04-27 the board refused opponent 9’s request for correction of the minutes of oral proceedings. The board did not find that the opponent's proposed texts contained essential elements of the oral proceedings that needed to be mentioned in the minutes. Moreover, a sentence of a proposed text was misleading. More importantly, another proposed text did not reflect properly what had been stated during the oral proceedings. With regard to a further correction requested, according to the board's detailed notes as well as its recollection of events in the oral proceedings, the allegedly incorrect statement was accurate.

Referring to T 263/05, the board in T 262/17 dated 30 August 2022 date: 2022-08-30 recalled that the minutes of oral proceedings before the boards of appeal should record the requests of the parties on which a decision of the board is required. The board noted that neither of the two requested corrections concerned the submission or the withdrawal of a request, nor a surrender or abandonment of subject-matter. Moreover, some passages of the requested corrections did not correctly reflect the course of the oral proceedings (see also T 450/20 and T 1494/21). Thus, the patent proprietor's request to correct the minutes of the oral proceedings had to be refused.