1.3. Competence to correct if application is no longer pending

In T 867/96 of 30 November 2000 the patentee had requested the correction under R. 89 EPC 1973 (R. 140 EPC) of a sentence in the reasons for a board of appeal decision, stating that all the parties had agreed that a certain document represented the closest prior art. The board pointed out that the case was closed, as res judicata, and therefore no longer before it. However, citing in particular G 8/95 (OJ 1996, 481) and G 1/97 (OJ 2000, 322), the board held that only the board which had taken a decision could decide whether it required correction. Furthermore, establishing whether correction was necessary involved studying the facts, implying in general and up to a certain point that such requests were admissible. The current board thus ruled that the request for correction was admissible. Nevertheless this particular request did not fulfil the requirements of R. 89 EPC 1973 and was therefore refused.

In J 16/99 the board held that when correction of the priority date of a granted patent is requested, there may be a case for correction under R. 89 EPC 1973 ( R. 140 EPC) of the EPO's decision to grant. The board found that R. 89 EPC 1973 allowed the correction of errors in, inter alia, decisions to grant, without the limiting requirement that proceedings be pending.

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