T 0914/18 - Correction of error in opposition

 Key points

• The patentee corrects a clerical error in claim 1 as granted in AR-7. The error and the correction are immediately obvious, the error is truly a simply clerical error.
• The Board: “As the correction of the obvious error, made in the set of claims filed on 4 May 2015 which underlies the application documents on which the grant of the European patent is based, concerns auxiliary request 7, Rule 139 EPC rather than Rule 140 EPC applies (see G 1/10, OJ EPO 2013, 194, point 9). ”
• G 1/10, r.9: “9. In the Enlarged Board's judgment a patent applicant (or, subsequently, a patent proprietor) has adequate means at his disposal to ensure his patent as granted is in the exact form he wants it to be without any need to invoke Rule 140 EPC. ...”
• “As the filing of auxiliary request 7 was occasioned by a ground for opposition under Article 100 EPC, the requirements of Rule 80 EPC are fulfilled. However, these requirements are irrelevant in the context of Rule 139 EPC (see G 1/10, point 13). The correction is thus allowable.”
• G 1/10, r.13: “13. The referring decision relates to opposition proceedings. The Enlarged Board considers Rule 140 EPC is not available for correcting patents, including during opposition or limitation proceedings. However, it is always open to a patent proprietor to seek to amend his patent during opposition or limitation proceedings and such an amendment could remove a perceived error. Such an amendment would have to satisfy all the legal requirements for amendments including those of Article 123 EPC. ...”
• It is not clear to me where in G 1/10 the Enlarged Board says that Rule 80 does not apply. 
• However, T0657/11, r.3.4 already explained that  "such mistakes or errors ... in the unamended part of the text in question may only be removed by way of a correction pursuant to Rule 139 EPC, which provision and the specific requirements defined therein apply independently from Rule 80 EPC." 

T 0914/18 - 

https://www.epo.org/law-practice/case-law-appeals/recent/t180914eu1.html

4.2.3 Concerning the correction of the obvious error in claim 1 of auxiliary request 7 from "immunotritional" to "immunonutritional", the board notes the following. The term "immunotritional" is clearly erroneous. From the wording of claim 1 of auxiliary request 7, as well as claim 1 as granted, it is obvious that the same composition as defined before is to be administered ("and wherein said [...] composition"). It is thus immediately evident from the wording of claim 1 as granted how the correction of the obvious error is to be made, i.e. by the replacement of the term "immunotritional" with "immunonutritional".

As the correction of the obvious error, made in the set of claims filed on 4 May 2015 which underlies the application documents on which the grant of the European patent is based, concerns auxiliary request 7, Rule 139 EPC rather than Rule 140 EPC applies (see G 1/10, OJ EPO 2013, 194, point 9). As the filing of auxiliary request 7 was occasioned by a ground for opposition under Article 100 EPC, the requirements of Rule 80 EPC are fulfilled. However, these requirements are irrelevant in the context of Rule 139 EPC (see G 1/10, point 13). The correction is thus allowable.