This is not a ground-breaking case and a Minority Opinion in the decision questions whether it was even necessary.
- The case concerns whether it is possible to correct the error of filing an appeal in the wrong name. The patent proprietor had changed and this had been registered at the EPO. However the appeal was filed in the name of the previous proprietor.
- The decision first considers the admissibility of the referral to the Enlarged Board. The Enlarged Board decided that although a referral presupposes the existence of an appeal to a Board of Appeal, the admissibility of that appeal can be the subject of a referral. The Enlarged Board also decided that the referral met the test of relating to a point of law of fundamental importance since it related to remedying a deficiency under Rule 101(2) and Rule 139 EPC and this was potentially relevant to a large number of cases. In addition the Enlarged Board decided the test for requirement of uniform application of the law was also fulfilled by the referral.
- However a Minority Opinion is also given in the decision which said that the criteria for a referral to the Enlarged Board were not fulfilled because the relevant law has been clear since T97/98, and there is no conflict with other decisions, such as G2/04.
- Relying on T97/98 the Enlarged Board decided that the deficiency could be remedied if it ‘does not reflect a later change of mind as to whom the appellant should be’ and if the correct appellant is sufficiently identifiable, for example with the help of other information from the file.
- The Enlarged Board also confirmed that in this situation a free evaluation of evidence is to be used to establish the true intention.
- The decision also confirms that R139 EPC can be used to correct in the present situation. This is a general rule allowing correction of errors in any document filed at the EPO.
You may also wish to see related articles Top 10 Points from EPO Case Law in 2013 and 10 Points on the Ethics and Morality of Patents in Europe.