T 1891/20 (II) - Request for correction of the minutes

Key points

• The patentee requests a correction of the minutes of the oral proceedings before the Board. The patent was revoked.
• The Board's written decision was issued on 9 December 2021, the minutes were issued on 19 November 2021. The request for correction was filed 3 February 2022. 
• A petition for review is pending.
• The Board "[because] the request for correction of the minutes was only made afterwards, the board considers it appropriate to deal with the request for correction in a decision ancillary to the board's written decision of 15 November 2021".
• "The board considers the present decision to be ancillary in that it cannot be challenged under Article 112a(1) EPC separately from the board's written decision of 15 November 2021 "
• "Parties are obliged to submit a request for correction of the minutes of oral proceedings promptly after receipt of the minutes (R 6/14, Reasons 7; see also point 2.4 above). The board understands this to require an immediate action from a party, i.e. to submit a request for correction of the minutes in the shortest time possible after their receipt."
• "Hence, if a party considers that the "essentials of the oral proceedings" or "relevant statements" within the meaning of Rule 124(1) EPC are incorrect or missing in the minutes of oral proceedings, they must file a request for correction of the minutes in the shortest time possible after their receipt. This ensures that the relevant facts and submissions are still fresh in the minds of the members of the deciding body and, if applicable, the other party or parties."
• "The contents of the written decision following oral proceedings do not have any bearing on whether the minutes of oral proceedings are incorrect or incomplete. The respondent therefore errs when stating in its submission dated 10 May 2022 that it is "compulsory" to wait for the written decision before submitting a request for correction of the minutes. Rather, such conduct suggests that a request for correction of the minutes may be embedded in litigation tactics, the purpose of which may not be limited to ensuring that the minutes are indeed correct and complete."
• "For the sake of completeness, the board points out that minutes may also be corrected ex officio (cf. T 231/99). Hence, while a party's request for correction of the minutes may be refused due to its late filing, a late-filed request for correction does as such not prohibit the competent body from correcting the minutes following that request."
• On the merits: "The respondent [patentee] alleged to have stated during the oral proceedings that "the right to be heard has not been respected by the Board by the non-admittance of the new auxiliary request"."
• "This is in contradiction to the unanimous recollection of the members of the board. The respondent did not at any time raise any objection related to any alleged procedural defect."
• " Rather, the respondent had argued during the discussion before the deliberation by the board that it followed, in its view, from the right to be heard that the auxiliary request should be admitted into the proceedings, because of the allegedly "new" objection as to added subject-matter raised by the board in its preliminary opinion under Article 15(1) RPBA 2020, to which they had reacted by filing the auxiliary request."
• "Presenting such an argument in favour of the admittance of a claim request does, however, not qualify as an objection under Rule 106 EPC and is, in fact, not recognisable as any kind of objection. Moreover, after the board had deliberated and had announced its conclusion not to allow the main request and its decision not to admit the auxiliary request into the proceedings under Article 13(2) RPBA 2020, the respondent did not make any reference whatsoever to the "right to be heard" or any other procedural issue."
• As a question, does it make sense to raise an objection under Rule 106 after the Board orally announces "its decision not to admit the auxiliary request into the proceedings"? Can a Rule 106 objection be raised pre-emptively before the Board commits the (perceived) procedural defect?

EPO - T 1891/20 (II) 

The link to the decision is provided after the jump.

https://www.epo.org/law-practice/case-law-appeals/recent/t201891eu2.html