Friday, March 18, 2016 T 0105/11: a requested correction of a decision and a too late filed ground of appeal

Admissibility of an appeal is quite often a point of discussion. In this case the Examining Division refused to grant a patent in a decision and the Applicant requested a correction of the (original) decision. When the Examining Division re-issued the decision it was not made completely clear that the re-issued decision was a correction of the previous decision (however, this is implicitly clear because the Applicant requested a correction). Case law defines that a correction of a decision has retrospective effect and that, thus, the date of refusing the patent application does not change and, thus, the appeal term still starts at the date of the original decision. In this case the Applicant filed a notice of appeal within the 2 months from the original decision, but filed the ground of appeal after the end of the 4 months period from the date of the original decision (and within 4 months from the date on which the decision was re-issued). In some appeal cases the principle of "protection of legitimate expectations" was applied in "similar" cases and the appeal was admissible. However, the Board had some doubts that this situation was similar enough to the previous cases. "Albeit not entirely without hesitation", the Board decided on this subject.