T 0387/25 - EPO Customer Service tickets and the electronic file

Key points

• The Board confirms that if the drawings are omitted from the Druckexamplar by the EPO by mistake with an unmarked change, an appeal will be admissible and allowable, notwithstanding Rule 71(5) EPC. Hence,  "[ T 265/20] remained a single decision and was not followed by other boards. "
• The Board notes that the Guidelines are not yet aligned with the case law on the point.
• ""It may be that the examining division refrained from granting interlocutory revision because the Guidelines for Examination (e.g. in Part H, Chapter VI) do not yet properly distinguish between cases where a mistake was already contained in an applicant's request or was explicitly approved by an applicant, and cases like the one at hand: where an examination board [sic], by mistake and unintentionally, deviated from the appellant's latest request when listing the documents intended for grant in a communication under Rule 71(3) EPC and this was neither pointed out to the applicant nor explicitly acknowledged by it."
• "4.1 As outlined above, the drawings were already missing from the A1 publication, which was an error made by the EPO over which the appellants had no influence. The appellants had brought that error to the attention of the EPO (point V.), but there is no indication in the electronic file that the EPO had taken any measures to address this issue, to arrange for a corrected publication of the application and to ensure that this error would not be perpetuated through the examination proceedings and grant of the patent. In fact, neither the appellants' initial enquiry with the EPO (generating a "ticket") nor the emails exchanged with the formalities officer have been documented in the electronic file as they should have been."
• I believe the part in bold is different from current practice, at least any EPO Customer Service tickets are not in the public online part of the file. 
  
  
• There is also an interesting part about the protection of legitimate expectations created by information given by the formalities officer during a phone call. 

EPO 

The link to the decision can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t250387eu1