tag:blogger.com,1999:blog-8990057754240336385.post222535142261037979..comments2024-02-27T09:18:36.160+01:00Comments on DeltaPatents Case Law blog: T 0105/11: a requested correction of a decision and a too late filed ground of appealDeltaPatentshttp://www.blogger.com/profile/07830354704918972593noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-8990057754240336385.post-21855812760330796702016-04-19T11:49:51.741+02:002016-04-19T11:49:51.741+02:00It does not matter why. The fact is, he did not. A...It does not matter why. The fact is, he did not. And given the outcome of this case, he need not have done so either.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-82079663645552291372016-04-16T07:40:14.608+02:002016-04-16T07:40:14.608+02:00Just for information
In T 2227/11 the ED cancelle...Just for information <br />In T 2227/11 the ED cancelled a first decision and issued a second one. For the BA this was wrong.<br />Since the applicant had filed an appeal within the time limits set in the first decision, the appeal was admissible.<br />The representative in T 2227/11 was thus well "aware" of the situation and acted accordingly.<br />Why did the representative in T 105/11 not act the same way? Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-40487376211520305652016-03-23T14:30:46.910+01:002016-03-23T14:30:46.910+01:00My comment was triggered by the assumption that th...My comment was triggered by the assumption that the Board may "just as well" decide differently in a future case. Of course, that is not how it should be, if the facts are the same. But facts are never the same, so indeed, the door is open to a different outcome, and a situation like this is better prevented.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-83845542169706339822016-03-22T21:14:26.893+01:002016-03-22T21:14:26.893+01:00It is amazing to see how touchy representatives ar...It is amazing to see how touchy representatives are, but the Board stated: "it appears that the professionally represented appellant should have been aware that the second decision intended to correct, as requested by the appellant itself, the first written decision under Rule 140 EPC", and ..... that "for this reason, albeit not entirely without hesitation, the Board holds, in application of the principle of the protection of legitimate expectations, that the statement of grounds of appeal is deemed to have been filed in time".<br /><br />Being told that the professionally represented applicant should have been aware of the situation and that the BA did not decide without great hesitation the the legitimate expectations had to be protected, boils down merely that he, the representative, should have known known better. <br /><br />In view of those statements it is not certain at all, that in future such appeals might continue to be deemed admissible.<br /><br />This does not excuse in any way the wrong-doing of the ED. If it had acted professionally we would be in the present mess. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-33747408015306405142016-03-21T18:13:40.599+01:002016-03-21T18:13:40.599+01:00It would have been strange if the Board would have...It would have been strange if the Board would have decided differently based only on the fact that the applicant was professionally represented. It is not up to a representative to "know better" when the EPO makes a mistake, and issues an unclear statement. It would lead to represented applicants being discriminated against as compared to non-represented applicants.<br /><br />The decision provides an overview of earlier situations in which unclear statements by the EPO have led to an appeal still being found admissible, despite grounds being filed late when seen in relation to a "first" decision. Those cases may or may not be identical to the current case, but the element in common with this case seems, that if legitimate expectations can be argued to exist, erroneous statements by the EPO should not come at the expense of the applicant. In such a case, it should (and does) not matter whether also an argument exists, pleading the opposite.<br /><br />Any remark that a representative should have known better is weak, given how the appeal was (apparently needed) to be decided upon. Any irritation should be directed to the instance that issued an erroneous and unclear statement in the first place.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-79156814285816836112016-03-19T10:25:30.879+01:002016-03-19T10:25:30.879+01:00The exasperation of the BA in view of the repeated...The exasperation of the BA in view of the repeated issuances of second decisions by ED or OD is clearly to be perceived, especially since this was already made clear in T 130/07.<br /><br />On the other hand, the Board is also slowly getting sick of professional representatives who file appeals based on a re-issued decision, whilst they certainly should know better. <br /><br />I am not sure the next time a BA will be so lenient, but at the origin is the not professional way of acting of ED and OD. Such "double" decisions should never have left the EPO, but in times where the accent is on production and not on quality, this should not come as a surprise. <br /><br />There is manifestly a problem of training, not only of ED and OD, but also of formalities officers and representatives. <br /><br />Furthermore, it should be possible to block such actions with the help of the IT systems of the EPO.<br /><br />Anonymousnoreply@blogger.com