3.1.2 Inconsistency between oral and written decisions

In T 425/97 the sole ground of appeal was the inconsistency existing between the written decision and the form of the patent held to be patentable by the opposition division at the oral proceedings. The board observed that R. 68(1) EPC 1973 (now R. 111(1) EPC) laid down that the decision announced at the oral proceedings and the written one had to be the same and so any discrepancy between the two was a procedural flaw (see also T 318/01, T 1590/06 and T 1698/06).

In T 850/95 (OJ 1997, 152) the board held that in examination proceedings, where the decision to grant the patent referred to the documents approved by the applicant under R. 51(4) EPC 1973 (now R. 71(3) EPC) these documents became an integral part of that decision.

In T 740/00 the board found that in opposition proceedings the documents referred to in the decision to maintain the patent in amended form also formed an integral part of that decision. Differences between the decision pronounced at the oral proceedings and the written decision were not mistakes which could be corrected under R. 89 EPC 1973, but amounted to a substantial procedural violation requiring immediate remittal of the case to the department of first instance.

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