R 0004/18 - Wait for a decision
This (yet unsuccessful) petition for review concerns appeal proceedings against a decision of the Examining Division.
The appeal was withdrawn by the representative of the applicant/petitioner during oral appeal proceedings reason for which the appellant later wanted to change his representative. In the minutes of the oral proceedings the BoA used the wording: "the Chairman gave the Boards conclusion that claim 1 did not meet Art. 123(2)". The petitioner interpreted this wording as a decision of the BoA and requested correction of the word "conclusion" into "preliminary view". The request was refused by the BoA.
The appellant filed the petition based on several grounds under Art. 112a, EPC and further argued that the Examining Division by examining a divisional application of the patent application in suit referred to the minutes to as a decision, thereby adversely affecting the divisional, besides leading to the refusal of the parent.
The Enlarged Board stated that a condition for filing a petition is the existence of a BoA decision. The minutes of oral proceeding and a correction thereof, are not a decision in the sense of Art. 106, EPC (confirmed by T 0838/92, T 0212/97, T 0231/99) and the appellant/petitioner withdrew the appeal even before oral proceedings were concluded and a decision could be issued. Therefore the Enlarged Board considered the petition inadmissible.
The appeal was withdrawn by the representative of the applicant/petitioner during oral appeal proceedings reason for which the appellant later wanted to change his representative. In the minutes of the oral proceedings the BoA used the wording: "the Chairman gave the Boards conclusion that claim 1 did not meet Art. 123(2)". The petitioner interpreted this wording as a decision of the BoA and requested correction of the word "conclusion" into "preliminary view". The request was refused by the BoA.
The appellant filed the petition based on several grounds under Art. 112a, EPC and further argued that the Examining Division by examining a divisional application of the patent application in suit referred to the minutes to as a decision, thereby adversely affecting the divisional, besides leading to the refusal of the parent.
The Enlarged Board stated that a condition for filing a petition is the existence of a BoA decision. The minutes of oral proceeding and a correction thereof, are not a decision in the sense of Art. 106, EPC (confirmed by T 0838/92, T 0212/97, T 0231/99) and the appellant/petitioner withdrew the appeal even before oral proceedings were concluded and a decision could be issued. Therefore the Enlarged Board considered the petition inadmissible.