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.

T 1691/15 - [A] - Complaints during opposition

Key points

• For OJ ([A]). The opponent (a private person, not professionally represented) had filed complaints and communicated with the Directorate Quality Support. This correspondence should have been forwarded to the other parties and put in the public file. 

EPO Headnote

Exchanges between an opponent and the EPO which have a substantive and/or procedural bearing on the case in opposition proceedings, even if dealt with by the Directorate Quality Support in the context of a complaint handling system, should be communicated without delay to the other party/parties, as any other submission of a party or communication of the EPO in opposition proceedings. Such an exchange with a substantive and/or procedural bearing on the case should figure, by definition, in the public part of the file

T 1691/15 - link

Summary of Facts and Submissions

I. The appellant (opponent) lodged an appeal against the decision to reject the opposition and maintain the European patent No. 2 291 312 as granted, requesting that the decision under appeal be set aside and the patent be revoked.

Reasons for the Decision

3. Communication of the exchange of letters between the appellant and the EPO during the opposition proceedings - Referral to the Enlarged Board of Appeal (request 6)

3.1 In his letter dated 7 May 2015 in the appeal proceedings, the appellant referred, among others, to the following letters:

- EPO's letter dated 30 April 2014; and

- Me Wouters's letter dated 3 July 2014.

These letters were not retrievable from the public part of the file which led the respondent to request to be provided with the various exchanges between the EPO and the appellant as well as Me Wouters, or any other unnamed person on behalf of the appellant, if not present in the public part of the file.

3.2 Since the Board has access to the complete file, including the non-public part, it became aware that during the opposition proceedings the appellant has had an exchange with the EPO on file-related issues, based on complaints on his part.

Such complaints are dealt with by a dedicated EPO department called "Directorate Quality Support" (DQS). DQS has been entrusted with the office-wide handling of complaints, being responsible for the administration and management of all (external) complaints, and for drafting and dispatching a reply to the complainant. This centralised procedure is meant to ensure a harmonised treatment of all complaints filed at the EPO.

The complaints as well the DQS replies are by default kept in the non-public part of the file.

The legal basis for this is apparently the Decision of the President of the EPO, OJ EPO 2007, Special edition No. 3, J.3, Article 1(2)(b), which states that documents "may, exceptionally, be excluded from file inspection by the Office of its own motion if their inspection would be prima facie prejudicial to the legitimate personal or economic interests of natural or legal persons other than a party or his representative" (Article 128(4) EPC and Rule 144(d) EPC).