5.2.2 Correction of designation of applicant (Rule 139 EPC)

Under the first sentence of R. 139 EPC, linguistic errors, errors of transcription and mistakes in any document filed with the EPO may be corrected on request. The boards, in particular the Legal Board, have developed a large body of case law on corrections, namely that the correction must introduce what was originally intended; where the original intention is not immediately apparent, the requester bears the burden of proof, which must be a heavy one; the error to be remedied may be an incorrect statement or an omission; and the request for correction must be filed without delay (see G 1/12, point 37 of the Reasons). The decisions below consider the application of the EPC 1973 (R. 88 EPC 1973, which was not amended in substance). On R. 40(1)(b) EPC, see in this chapter IV.A.5.2.1.

In J 7/80 (OJ 1981, 137), the Legal Board held that if the wrong applicant was named in an application and the wrong applicant and the correct applicant were both companies forming part of the same group of companies then the mistake could be corrected under R. 88 EPC 1973, if there was sufficient evidence to support the request for correction.

Following J 7/80 (OJ 1981, 137) it was held in J 18/93 (OJ 1997, 326), J 17/96 and J 31/96 that a correction substituting the name of the applicant was allowable under R. 88 EPC 1973 if there was sufficient evidence to support the request for correction. This rule was not in conflict with the provisions of Art. 61 EPC 1973, which concerned ownership disputes. R. 88, second sentence, EPC 1973 was not applicable. It was only necessary to verify whether there was sufficient evidence to support the request under R. 88 EPC 1973 for correction of the applicant's name; where the correction of a mistake was requested and R. 88, second sentence, EPC 1973 was not applicable, the EPO had to be satisfied that a mistake had been made, what the mistake was and what the correction should be. In J 8/80 (OJ 1980, 293), the Legal Board added that, in order to avoid any abuse, the burden of proving the facts had to be a heavy one.

A correction under R. 88, first sentence, EPC 1973 was retroactive to the original date of filing (J 3/91, OJ 1994, 365; J 2/92, OJ 1994, 375) and the application was restored to the form which it should have taken on the filing date if the error had not been made (J 4/85, OJ 1986, 205).

In J 17/97 and J 18/97 the representative had filed the parent application in the name of Int. Inc., but the divisional application in the name of S.medica. Due to the different identities of the applicants, the Receiving Section had refused to treat the application as a divisional application. In its decisions, the Legal Board did not allow the request for correction to replace the name of the applicant of the divisional application with the name of the applicant of the parent application pursuant to R. 88 EPC 1973 because the appellant had not proved that the divisional application had been filed in error by S.medica and should have been filed by Int. Inc.