J 0010/25 - (I) Correctly followed the procedure, still SPV

Key points

• In this case, a European patent application was filed with formal deficiencies in the drawings. The Receiving Section issues a communication under Rule 58; no reply is received within the period of two months, and the Receiving Section issues a decision refusing the application using the appropriate form 1088 (https://link.epo.org/communications/F1088E_07.19_en.pdf) that contains, in relevant part:
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• The Legal Board sees a substantial procedural violation in a very short decision.
• "4. The Decision [of the Receiving Section] is ambiguous: the defect could be that the deficiencies noted in the communication dated 10 October 2024 were either: "Not corrected in due time"; or "Not properly remedied". The decision leaves open whether refusal was based on non-observance of the Rule 58 EPC time limit or on an assessment that the subsequently filed drawings still failed to meet Rule 49 EPC. Thus, the decisive ground remains unclear. This violates Rule 111(2) EPC (reasoned decision) and deprives the appellant of effective judicial reasoning. This ambiguity thus constitutes a substantial procedural violation. "
• The Legal Board's point is this, I think: the EPO is not precluded from issuing a reasoned, written decision, i.e. a decision with written case-specific findings and legal reasoning. The choice of the EPO President to prescribe the use of forms to the officers staffing the Receiving Section does not derogate from Rule 111(2) EPC. In other words, Form 1088 as such should be reconsidered. 
• When we are at it: why does the form include the following list of tick boxes? 
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  My theory is that it originates from when the forms were pre-printed in batches, not printed on demand with an inkjet printer. A typist would take a printed form (i.e., one sheet of paper pre-printed with the fixed text of the form), tick the relevant box from the list, and type (with a mechanical typewriter) the application number, etc., in the appropriate empty spaces on the form. Comments are welcome, however.  
• My view is that any form with a list of check boxes is outdated, or at least old-fashioned. Communications from the EPO should no longer contain text that does not apply to the case concerned. 
• There is more to this decision. Stay tuned!
  
  
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EPO 

The link to the decision is provided after the jump.

J 0010/25

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