Patent applicant 

(i) Patent applicant adversely affected

In J 12/83 (OJ 1985, 6) the board found that an applicant for a European patent might be "adversely affected" within the meaning of Art. 107 EPC 1973 by a decision to grant the patent, if the patent was granted with a text not approved by him under Art. 97(2)(a) EPC 1973 and R. 51(4) EPC 1973. In J 12/85 (OJ 1986, 155) the board held that he could be "adversely affected" within the meaning of Art. 107 EPC 1973 only if the grant decision was inconsistent with what he had specifically requested (see also T 114/82 and T 115/82, both OJ 1983, 323 and T 1/92, OJ 1993, 685).

In T 1682/13 the admissibility of an appeal was challenged on the grounds that the only request filed with the statement of grounds had not been the subject of the contested decision. In the board's view, under Art. 107 EPC any party adversely affected by a decision was entitled to appeal. A party was always adversely affected if the contested decision failed to meet that party's wishes at first instance, in other words if it granted the party less than it had requested. This had to be assessed by comparing the request at first instance with the substance of the decision (cf. T 244/85, OJ 1988, 216).

In T 528/93 a request was withdrawn during opposition proceedings and was thus not the subject of the contested decision. The board decided that a virtually identical request filed during appeal proceedings was not the subject of the appeal, because the appellant was not adversely affected by the decision of the opposition division as far as this request was concerned.

In T 327/13 the board found that T 528/93 was not relevant to the facts at issue. The function of appeal proceedings is to give a judicial decision upon the correctness of the decision under appeal and not to reopen the opposition proceedings to add an independent claim to a claim set already allowed by the opposition division.

The board went on to say that, to establish whether a party has been adversely affected by a decision, it is not enough to consider the end result in isolation, but to consider the party's complete case, as is defined in Art. 12(2) RPBA, in conjunction with the substance of the decision. Although the board noted that it was clear that the appellants were adversely affected by the opposition division's decision not to accede to the then main request, the decision had not been contested with the appeal. The board therefore concluded that they could not be regarded as "adversely affected" under Art. 107 EPC.

An applicant was 'adversely affected' and thus able to file an appeal where the examining division had rectified its decision but refused to grant reimbursement of the appeal fee (J 32/95, OJ 1999, 733).

The grounds forming the basis of a decision on rectification should not be interpreted to mean only the legal basis of the decision, but also the factual reasons supporting the legal basis. An applicant adversely affected by the factual basis was thus considered adversely affected in T 142/96.

(ii) Patent applicant not adversely affected

In J 5/79 (OJ 1980, 71) the board ruled that an applicant whose priority right was found to have lapsed because he failed to file the priority documents was no longer adversely affected if re-established in his rights before the application was published.

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