R 0009/21 - Effect of refused correction of minutes

Key points

• The petitioner had requested a correction of the minutes of the oral proceedings before the Board. The Board refused the correction (blog post here). 
• The Enlarged Board: " It has to be noted that a request for correction of the minutes was refused by the Board. The Enlarged Board has to rely on the minutes as they stand." 
• The petition is rejected as clearly inadmissible.

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://www.epo.org/law-practice/case-law-appeals/recent/r210009eu1.html

4. Rule 106 EPC reads:

A petition under Article 112a, paragraph 2(a) to (d), is only admissible where an objection in respect of the procedural defect was raised during the appeal proceedings and dismissed by the Board of Appeal, except where such objection could not be raised during the appeal proceedings.

5. Whether an objection was validly raised during oral proceedings is normally entered into in the minutes which, as prescribed by Rule 124(1) EPC, must contain the relevant statements of the parties. The minutes of the oral proceedings authenticate the facts they relate to. On the petitioner's own submissions no objection which could qualify as an objection under Rule 106 EPC was raised during oral proceedings.

6. It has to be noted that a request for correction of the minutes was refused by the Board. The Enlarged Board has to rely on the minutes as they stand.

7. Before the closure of the debate, the parties were informed about the intended decision of the Board and its basic reasoning. This conclusion can be drawn from the minutes of the oral proceedings in its original version, as the Board refused a request for correction by its reasoned decision of 8 November 2021. The Board affirmed that the minutes correctly reflected the part of the oral proceedings referred to in the petitioner's request for correction of 10 June 2021.

8. The first two paragraphs on page 3 of these minutes before the Board read:

The Chairman informed the parties of the preliminary opinion of the Board that the conclusion to be drawn with regard to the main request would apply mutatis mutandis to auxiliary requests 1 to 4. The parties agreed on the preliminary opinion of the Board.

After deliberation the Chairman informed the parties of the

a) ...

b) the Board's conclusion that the subject-matter of claim 1 of the main request was not novel over the disclosure of document D9, and that

c) the Board's conclusion on the main request applied mutatis mutandis to the subject-matter of claim 1 of each of auxiliary requests 1 to 4.

At this point in time, i.e. before the discussion of auxiliary request 5, or in answer to the Chairman's later question as to whether the parties had any further comments or requests (page 4 of the minutes), the petitioner could have raised the objection that, because of the difference in the wordings between the claims of the main and auxiliary requests, the conclusion relating to the main request could not apply mutatis mutandis to the auxiliary requests.

9. Because the petitioner failed to raise a possible objection under Rule 106 EPC during the oral proceedings before the Board in respect of the alleged procedural deficiency giving rise to the petition for review, the petition clearly lacks an indispensable precondition for its admissibility. The petition for review, therefore, has to be rejected as inadmissible, leaving no room for any of the petitioner's requests 1 to 4 (point V. above) to be allowed.

Order

For these reasons it is decided that:

The petition for review is unanimously rejected as clearly inadmissible.