T 0216/26 - When the EPO forgets the drawings

Key points

• A Euro-PCT application
• "At no stage during the examination proceedings did the examining division suggest any amendment to the [seven original] drawing sheets, nor did the appellant request or propose any such amendment. The examining division thereafter issued the communication under Rule 71(3) EPC, in which only a single drawing sheet was included. "
• Hence, the EPO "forgets" the drawings. See also: https://justpatentlaw.blogspot.com/2025/11/t-071225-when-epo-forgets-drawings.html; 
• https://justpatentlaw.blogspot.com/2025/03/t-122424-when-epo-forgets-drawings-and.html
• https://justpatentlaw.blogspot.com/2025/03/t-042321-when-epo-forgets-drawings.html
• The applicant paid the grant fee and filed the translated claims.
• The applicant appeals within two months.
• The Board, on admissibility: "The appeal is admissible according to Articles 106 to 108 EPC and Rule 99 EPC; in particular, the appellant is adversely affected by the decision under appeal within the meaning of Article 107 EPC. The patent as granted does not correspond to the application documents filed with the request for entry into the European phase on 10 August 2023, which were never amended as regards the drawings."
• Nice to see the Board can decide this point so easily.
• "The legal consequence of Rule 71(5) EPC, i.e. the deemed approval of the notified text, only arises if the communication sent also complies with the substantive requirements of Rule 71(3) EPC, i.e. if it actually contains the text in which the examining division intended to grant the patent, on the basis of the documents filed by the applicant, possibly supplemented by individual marked amendments 
• " the Board is also satisfied that the text notified under Rule 71(3) EPC does not reflect the true intention of the examining division as regards the documents on which the patent was to be granted. Rather, the omission of drawing pages 2/7-7/7 represents a clear and unintentional omission from the text proposed for grant, in line with the considerations set out in decision T 0387/25 
• "The decision under appeal is therefore to be set aside."
• " the reimbursement of the appeal fee is not held equitable since the applicant made no use of opportunities to participate in the initial proceedings (J 4/09, Reasons 4), as the error made by the examining division was introduced already in April 2025 into the communication under Rule 71(3) EPC, and the applicant could and should have noticed it when checking the text of the communication under Rule 71(3) EPC, because the fact that part of the published drawing were omitted should have alerted it and should have prompted a double check."
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EPO 

The link to the decision is provided after the jump.

T 0712/25 - When the EPO forgets the drawings

Key points

• Yet another case where the EPO omits the drawings from the Druckexemplar, without notice.
• In this case, the applicant spotted the mistake of the EPO and even informed the EPO simultaneously with paying the grant fee and filing the translated claims. Still, the patent was granted without the drawing.
• The Board allows the appeal and reimburses the appeal fee.
• Respectfully, the EPO should make its processing of the drawings more robust. 
• " In the present case, drawing page 1/1 was part of application WO 2020/128200 A1 and was still present in the application when it entered the regional phase. However, it was absent from the 'Druckexemplar' and from the communication under Rule 71(3) EPC. While the appellant was informed of the deletion of page 53 of the description, he was not informed of the deletion of the drawing page. The absence of the drawing page is also inconsistent with the references to Figure 1 in the pages of the description intended for grant (page 46, lines 6 and 16). The Examining Division certainly did not intend to omit the drawing page without reason, in the absence of objections raised against it, without informing the applicant and without deleting the corresponding references in the description, especially since the applicant had already pointed out this omission and had only given his consent to the text intended for the grant of the patent on the condition that the drawing page be included."
• Appeal SoG filed 16.5.2025. Appeal granted 06.10.2025. 

EPO 

The link to the decision can be found after the jump.

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 1224/24 - When the EPO forgets the drawings and the proprietor notices in time

Key points

• The appeal lies from the decision of the examining division to grant a European patent on the basis of the application documents indicated in the communication under Rule 71(3) EPC dated 13 December 2023.
• The appeal was filed on 03.07.2024. The DTG was dated 03.05.2024. The mention of the grant was 29.05.2024.
• The Board: "The appeal is admissible since the appellant is adversely affected by the omission of 48 out of 52 drawings in the decision to grant. The granted version of the patent corresponds neither to the text submitted by the applicant, nor to a text agreed upon or deemed approved by the applicant." 
• "A review of the file history reveals that while several versions of the description and claims were submitted by the applicant on 16 September 2021, 2 August 2022, 10 August 2022, and 13 September 2023, the figures or drawing sheets were never amended or partially withdrawn. This indicates that the drawings forming part of the applicant's request for grant were those filed with the request for entry into the European phase-namely, the original drawing sheets 1/52, 2/52, 4/52 to 27/52, 29/52 to 36/52, 38/52, 39/52, and 41/52 to 52/52, along with the amended drawing sheets 3/52, 28/52, 37/52, and 40/52, which were submitted on 27 September 2020 upon entry into the European phase. All these drawings were correctly published in the A1 application."
• "The communication under Rule 71(3) EPC dated 13 December 2023 proposed amendments to the description and to claim 1 but did not indicate that the text intended for grant differed from the applicant's request regarding the drawings. Furthermore, no prior communication from the examining division proposed amendments to the drawings filed by the applicant, or contained any comments on them. All communications stated that, for the figures, the examination was carried out on the amended drawing sheets 1/4-4/4 as filed upon entry into the regional phase before the EPO. However, the file contains no explicit approval from the applicant for the removal of the remaining 48 originally filed drawings. It appears that neither the members of the examining division nor the appellant realized that the original drawing sheets 1/52, 2/52, 4/52 to 27/52, 29/52 to 36/52, 38/52, 39/52 and 41/52 to 52/52 were omitted and only the amended drawing sheets 3/52, 28/52, 37/52 - renumbered 1/4- 4/4 - were considered by the examining division."
• " In accordance with T 1003/19 (catchword and point 2.4 of the reasons), T 1823/23 (point 1.9 of the reasons), T 2081/16 (point 1.4 of the reasons), the Board considers that the legal consequence set out in Rule 71(5) EPC can only apply if the communication under Rule 71(3) EPC reflects the examining division's intention regarding the application documents on which the patent is to be granted."
• "Under normal circumstances, it can be assumed that the text referred to in a communication under Rule 71(3) EPC reflects the examining division's intention regarding the text on which the patent is to be granted. However, this is not the case when objective elements in the communication and/or in the text annexed to the it, such as significant discrepancies between the communication and the "Druckexemplar", or within the "Druckexemplar" itself, clearly indicate that the text does not correspond to the examining division's intention (see T 1003/19, points 2.4.3 and 2.4.4)."
• "  the Board concludes in the present case that neither the documents referred to in Form 2004C nor the "Druckexemplar" reflected the text in which the examining division intended to grant the patent. Hence the text communicated to the applicant with the communication of 13 December 2023 did not correspond to the text intended for grant under Rule 71(3) EPC."
• " If the applicant is not communicated the text intended for grant under Rule 71(3) EPC, the legal consequence outlined in Rule 71(5) EPC does not apply. Therefore, the applicant's subsequent filing of translations and payment of fees for grant and publishing do not imply approval of the communicated text."
• " A decision to grant under Article 97(1) EPC, based on a text that was neither submitted nor agreed upon by the applicant, as is this case (see points 1.1- 1.11 above), does not comply with Article 113(2) EPC. Therefore, the decision under appeal is to be set aside."
• " the board considers that the present decision does not deviate from G 1/10, which determined that Rule 140 EPC cannot be used to correct the text of a patent, but did not concern the interpretation of Rule 71 (5) EPC. Therefore, Article 21 RPBA does not apply. The Board fully agrees with and refers to the reasoning in T 2081/16 (point 3) and T 1003/19 (point 4)."

EPO 

The link to the decision can be found after the jump.

T 0423/21 - When the EPO forgets the drawings

 Key points

• This applicant reaps the bitter fruits of  G 1/10 (in other words, the present case illustrates the harsh consequences of the Boards' current interpretation of G 1/10. 
• The PCT application was filed with drawings (18 pages) and had the drawings in the WO publication in 2013. 
• The PCT Pamphlet  (WO publication WO2013184830) is not included in the EPO's online file wrapper. 
• Why is unclear to me. The WO publication is usually included in the EPO online file, see e.g. this case. 
• Hence, we cannot see what the EPO received (or obtained) from the IB / WIPO as the PCT application in 2014. Does any of the readers know more about this? 
• Amended claims and an amended description are filed in the prosecution.
• The Rule 71(3) Communication does not include the drawings: they are not part of the Druckexemplar (the "Text intended for grant (version for approval")  in the online file, nor are they listed in Form 2004, i.e. the form that is the basic part of the Rule 71(3) communication). Nothing is said about the drawings in Form 2004: some amendments by the EPO are listed, but nothing about the drawings. 
• The patent is granted on 8 May 2019 (the date of the publication of the mention of the grant). The decision to grant is dated 11.04.2019.
• The applicant files a request for a correction on 23.07.2019. 
• The Board does not grant any remedy. The B1 publication corresponded to the Druckexemplar. The request for a correction under Rule 140 is refused, referring to G 1/10.
• "As it is the applicant's duty to properly check all the documents making up the communication under Rule 71(3) EPC (i.e. Form 2004 and the Druckexemplar), the responsibility for any errors remaining after grant are his alone, whether the error was made (or introduced) by him or by the examining division."
• The request under Rule 139 is also refused.
• Perhaps an appeal against the decision to grant in combination with a request for re-establishment could have been tried, but that procedure was ruled out by the recent decision T 0178/23. 
• Of course, decisions of the Enlarged Board are not carved in stone (see G3/19 point xx), so a referral could have been requested. G1/10 was about a change of a typographic error in the claims. It is not about the EPO losing parts of the application, in other words, ummarked amendments by the EPO of the application.
• Finally, possibly the error by the EPO can be treated as a correctable formatting error: H-VI,4: "Formatting/editing errors are alterations in the patent documents which occur during the preparation of the Druckexemplar and which are indicated neither by standard marks nor in Form 2004." (also in the 2019 edition). The decision of the Examining Division does not refer to this specific paragraph of the Guidelines. 
• The example in the Guidelines of a "formatting/editing error" refers to "the two top lines" in a page that "have just disappeared" from the Druckexamplar without editing marks in the Druckexmplar and without an indication on Form 2004). This can be corrected, according to the GL.
• Given that the letters in the Druckexamplar don't have little legs, the example in the GL  actually refers to the EPO's software deleting or omitting the two sentences during the preparation by the Druckexmplare (in fact, the example mentions that there are other, marked, edits by the Examining Divisio on the same page). 
• I don't see a size limit in the GL's definition of "Formatting/editing errors are alterations in the patent documents which occur during the preparation of the Druckexemplar and which are indicated neither by standard marks nor in Form 2004", i.e. no limit to alterations of less than three lines, and no exclusion of alterations in the drawings. 
• There could be possible reasons why the remedy of H-VI,4 is not applicable, but as the present  decision is not concerned with that remedy, there is no need to speculate on any possible obstacles. 
• The Board does not comment on the procedure of GL H-VI,4, so nothing in the present decision is a problem for that remedy.