J 0010/25 - (II) Correcting the drawings in limine

Key points

• The Receiving Section sent an invitation under Rule 58 to correct the drawings on 10.10.2024, with a two-month time limit.
• "The appellant did not respond within the time limit under Rule 58 EP"
• The Receiving Section issued a refusal decision on 22.01.2025, but  "it was not possible [for the EPO] to prove that this [decision] had been delivered to the [applicant] "
• This is an application of Rule 126(2), second sentence. 
• " The appellant then filed the following drawings: A set of drawings filed on 19 March 2025"
• On 01.09.2025, the Receiving Section issued the (appealed) refusal decision.
• At that time, the corrected drawings were on file. Could the refusal decision still be issued?
• J 11/20: "The deficiency having been remedied late and no [request for re-establishment] having been filed, the Receiving Section was empowered to issue the refusal decision at expiry of the time limit given under Rule 58 EPC (see in particular J 1/18, Reasons 5)."
• Is an appeal sensible?  Yes: J 11/20:  "as clarified in decision J 18/08 (Reasons 4 and 6), when an application is refused under Article 90(5) EPC, if an appeal is filed against such a refusal, the board of appeal has to examine whether the deficiency noted has been corrected or not. Thus the deficiency on which the decision under Article 90(5) EPC is based can be corrected at the appeal stage."
• Interlocutory revision should have been granted, assuming that the new drawings are formally correct. J 11/20: "The practice of the Receiving Section, based on this procedure and following the cited case law, has been to rectify its decision refusing an application under Article 90(5) EPC, if an appeal is filed and the deficiency is remedied at the appeal instance ..."
• It seems that you can file the drawings shortly after the time limit set under Rule 58, but that you can only file the appeal and pay the appeal fee once the refusal decision is issued. Normally, however, that does not take long.
• In this case, the Board does not decide on whether the drawings are acceptable and/or whether they are correctly repaired with the appeal, but remits the case to the Receiving Section for procedural reasons (see the previous blog post). I infer from this choice of the Legal Board of Appeal that it wished to make its point about the Receiving Section's use of standard forms. 
  
  
• As a result, the application, presumably filed on 22.05.2024, has not yet been published (as of August 2026), and the decision of the Legal Board of Appeal is published in anonymised form. I wonder whether, if you wish to keep an invention secret for more than 18 months and only desire a European patent, you can use deficiencies in the drawings to delay the publication. 

EPO 

The link to the decision is provided after the jump.

J 0010/25

https://www.epo.org/en/boards-of-appeal/decisions/j250010eu1