T 0190/19 - Parties must formulate the claims with the greatest possible care

Key points

•  In this examination appeal, the Board decides on admissibility of AR-1.
• "In the appellant's view, this amendment corrected the lack of convergence objected to with respect to the first auxiliary request. According to the appellant's submission in the statement setting out the grounds of appeal, section III, sixth paragraph, it should be obvious that the appellant's intention was not to broaden claim 1. On the contrary, the previous omission of the gate-electrode facing portion 3a being of the first electroconduction type should now be reintroduced to correct the obvious error. In the appellant's view, the correction of an obvious error should be possible."
• "Contrary to the appellant's opinion, the Board holds that the amendments of claim 1 of auxiliary request 1b do not concern an obvious error. Even if the statement of grounds of appeal indicated with respect to the first auxiliary request that claim 1 was amended in a certain way (see statement setting out the grounds of appeal, section III, sixth paragraph), the resulting contradiction between this indication and the wording of claim 1 does not automatically render the point in question an obvious error."
• " In fact, it is not uncommon for parties to assert facts in their accompanying letters that are not reflected in the wording of the claims. Thus, a contradiction between the accompanying letter and the wording of the claims alone is not sufficient proof for an obvious error. In addition, it must be assumed that the parties formulate the claims with the greatest possible care. The Board must rely on the wording of the claim and cannot necessarily assume that the lack of convergence is merely an error, let alone an obvious error. Still less can it conclude that the actual intention is based on the information in the accompanying letter."
• "Irrespective of whether or not the error was obvious, the Board notes that the lack of convergence was already objected to in the Article 15(1) RPBA 2020 communication. Therefore, auxiliary request 1b should have been filed directly in response to this communication as quickly as possible if this error was to be corrected. However, this did not happen."
• The request is not admitted.

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/t190190eu1.html