6. Examination of formal requirements

Under Art. 90(3) EPC, if the patent application is accorded a date of filing, the EPO examines, in accordance with the Implementing Regulations, whether the requirements set forth in the following provisions have been satisfied:

- Art. 14 EPC, concerning the language of the European patent application (see chapter III.F.1.);

- Art. 78 EPC, concerning the requirements of a European patent application (see in this chapter IV.A.6.1.);

- Art. 81 EPC, concerning the designation of the inventor (see in this chapter IV.A.6.2.);

as well as any requirements laid down in the Implementing Regulations, and, where applicable;

- Art. 88(1) EPC, concerning claiming priority (see in this chapter IV.A.8.);

- Art. 133(2) EPC, concerning general principles of representation (see chapter III.V.);

- any other requirement laid down in the Implementing Regulations (see in this chapter IV.A.6.3.).

Under Art. 90(4) EPC, where the EPO notes that there are deficiencies which may be corrected, it shall give the applicant an opportunity to correct them. If any deficiency noted under Art. 90(3) EPC is not corrected, the patent application shall be refused unless the EPC provides a different legal consequence (Art. 90(5) EPC).

In J 18/08, the Legal Board held that, where an application was refused under Art. 90(5) EPC, the deficiency on which the refusal decision was based could be corrected at the appeal stage. From this it followed that if an appeal was filed against such a refusal under Art. 90(5) EPC, the board had to examine whether the deficiency noted had been corrected or not. The Legal board explained that the present case was different from the situation where the non-observance of a time limit automatically led to the application being deemed to be withdrawn. In such a case the legal consequence automatically ensued when an act required within a specific time limit was not performed, without any decision to be taken concerning the refusal of the application.

In J 11/20 the applicant appealed a decision of the Receiving Section refusing their application under Art. 90(5) EPC in conjunction with R. 58 EPC. The sole reason for the refusal was that the four amended drawings filed by the applicant to remedy formal deficiencies in the application documents were not in agreement with the application documents as originally filed and, despite the invitation by the Receiving Section, the applicant had not corrected this deficiency in due time. The Legal Board observed that when the appeal was filed, the formal deficiency had already been remedied, albeit late, with the filing of the correct drawings. Considering that the ground for refusal of the application under Art. 90(5) EPC had been remedied, the Legal Board established that the Receiving Section should have granted interlocutory revision in accordance with Art. 109 EPC.