6. Procedural status of third parties

In T 1259/09, in the course of the opposition proceedings, opponents had requested a correction of the decision to grant pursuant to R. 140 EPC. The opposition division forwarded this request to the examining division. In a communication the examining division informed the opposition division that no correction of the grant decision would take place. The opponents filed an appeal against this communication of the examining division. The dispute at issue was whether the appellants (opponents), by filing their request for correction, had initiated proceedings before the examining division which were separate from the ex parte examination proceedings with the consequence that they had become a party to the proceedings before the examining division. The board held that by filing a request for correction of the grant decision under R. 140 EPC a third party does not become a party to the examination proceedings.

In T 1349/08 the board held that correction of the decision to grant belongs to the examination proceedings. Analogous to Art. 115 EPC a person – here the appellant (opponent), who is neither applicant nor patentee – contesting the allowability of a correction of a decision to grant under R. 140 EPC and requesting reinstatement of the original decision to grant, cannot thereby become a party to the proceedings, irrespective of whether or not the Appellant is adversely affected by said "decision", it cannot acquire the quality of party status to the examination proceedings.

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