tag:blogger.com,1999:blog-8990057754240336385.post3622805537939960209..comments2024-02-27T09:18:36.160+01:00Comments on DeltaPatents Case Law blog: T 610/11 - An error in a document filed with the EPO, but... who's error?DeltaPatentshttp://www.blogger.com/profile/07830354704918972593noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-8990057754240336385.post-91340054663667666112016-09-26T13:41:34.690+02:002016-09-26T13:41:34.690+02:00Alright. Nevertheless, it seems to be problematic ...Alright. Nevertheless, it seems to be problematic im view of the headnote of G 8/91 which reads: "In so far as the substantive issues settled by the contested decision at first instance are concerned, appeal proceedings are terminated, in ex parte and inter partes proceedings alike, when the sole appellant withdraws the Appeal". I have the impression that this means the Boards of Appeal may no longer change the decision which has become final. Or does the "ab initio"-effect of the correction according to Rule 139 EPC mean that the correction provokes that the withdrawal is deemed to have never been filed? It appears that only in this case, a change of the final decision is still possible.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-2703535444626680302016-09-22T08:50:32.238+02:002016-09-22T08:50:32.238+02:00My concern is that the appealed decision becomes &...My concern is that the appealed decision becomes "res judicata" upon the publication of the withrawal by EPO rather than upon the submission of the same by the applicant or his representative. The procedure is pending until the EPO carries out the formal steps (check of the instruction, check of the open issues such as proceeding for concerning entitlement to the application pursuant to Rule 15....) necessary to close it.Unknownhttps://www.blogger.com/profile/12044096481149057032noreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-68308393117783603512016-09-21T16:30:07.630+02:002016-09-21T16:30:07.630+02:00In my point of view, it appears that the Boards of...In my point of view, it appears that the Boards of Appeal even did not have competence to decide on the issue. In fact, it seems that the consequence of the withdrawal of the appeal is that the appealed decision becomes final (res judicata). A correction via R. 139 EPC appears to be impossible because 1. no procedure is pending any more, 2. a correction via R. 139 has no retroactive procedural effect (see also J 20/12, J 6/02 and J 3/01) and 3. the Boards of Appeal are - in principle - not competent to set aside a decision which has become final. In other words, in my view, it seems that the Boards of Appeal should have submitted a statement that the procedure has terminated with the withdrawal of the appeal and that they are incompetent on further deciding on the issue. What do you think?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-19005083917852137612016-09-20T12:25:35.408+02:002016-09-20T12:25:35.408+02:00OK, so R.139 would have applied only if the repres...OK, so R.139 would have applied only if the representative had misrepresented the applicant's true intentions at the time, as formulated by the applicant's IP person. In other words, it's the applicant's responsibility if a person internally appointed makes a mistake in expressing the intention of (let's say) the management. But then indeed it becomes interesting why an intention previously expressed towards the EPO cannot be turned around. In 4.4, they cite legal certainty for the applicant and the public. But, the applicant does not care about his legal certainty; he just wants to turn his own case around. And as for the public: the withdrawal had not yet been published, so no problem in that respect either. (So why: "this issue may thus be left open"?) Ultimately this may just be about legal certainty for the EPO. It would not be workable for them, if an applicant at any point in time could change his mind.Anonymousnoreply@blogger.com