Error correction

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Chapter 1. Correction of errors in produced parts

Section 1.1. The person making the mistake

For an error to be corrected, it is essential that the error comes from the person in charge of the file:

  • the applicant if he does not have an agent; 
  • the representative if he represents the applicant.

Nevertheless, if the applicant makes an error in his decision and communicates an erroneous order (but without ambiguity to the representative), this will not be susceptible of a correction (T610 / 11).

Section 1.2. Deadline to submit a correction request

The request may be presented:

  • if the correction presents a risk of compromising the legal security of third parties:
    • after the end of the technical preparations for publicationif it appears from the published application that the request contains an error (eg claimed priority manifestly inconsistent, J2 / 92 and AV Guidelines 3),
    • if not, before the end of the technical preparations for publication (J21 / 84 and AV Guidelines 3if a decision is pending at the end of the technical preparations, a mention is made of the publication),
  • if not, at any time (J21 / 84 and AV Guidelines 3):
    • but only until delivery of the decision to grant the patent (written procedure) to the internal courier service or until the decision has been delivered (oral proceedings) (H-VI Guidelines 2.1) for corrections to the description, claims or drawings.
    • where appropriate, in opposition or limitation proceedings (DX 4.3 Guidelines).

Section 1.3. Type of errors

1.3.1. Error on the applicant

An error concerning the person of the applicant (eg the person mistakenly named is part of the same group as the actual applicant) can be corrected if sufficient evidence are brought (D7 / 80 and J18 / 93).

1.3.2. Correction of priority

It seems possible to request a correction under the R139 EPC. Nevertheless, a number of conditions must be respected:

  • dated and state filing of the earlier application (AV Guidelines 3) :
    • the request for amendment must have been filed early enough to be taken into account before publication (eg, simple mention of the correction in the publication);
    • or, on the other hand,
      • if the error is obvious (D8 / 80) or the information is manifestly inconsistent (J3 / 91 and J2 / 92). Concerning this point, the error must be obvious to the public (who is not a qualified patent engineer who is familiar with the procedure and habits of the trade, J11 / 18)
      • if it appears from the published application that an error has been made (J6 / 91) ;
      • if the rest of the proceedings can not suggest to the public that the priority claim was correct (T713 / 02) ;
      • if another priority is added and is later (J4 / 82) ;
  • number deposit :
    • it is possible to correct it at any time, even after publication, because the wrong number can not infringe the rights of third parties (since the priority document is in the folder, J3 / 91).

Normally, this correction is made by the formalities officer (" Decision of the President of the European Patent Office dated 12 December 2013 to assign to agents who are not examiners certain tasks of the Examining or Opposition Divisions », OJ 2014, A6point 22). Nevertheless, if the formalities officer makes a correction, this does not mean that the point is definitively decided (T713 / 02).

1.3.3. Missing or erroneous drawings

A missing or erroneous drawing can be corrected if the skilled person can deduce from the description the missing drawing or the correction to make on the erroneous drawing (ie without contravening theA123 (2) EPC) (J4 / 85).

The priority document can not be of any help for this correction (G3 / 89, G11 / 91 and H-VI Guidelines 2.1).

1.3.4. Misdirection

1) Criterion

To correct an error in disclosure, it is necessary (H-VI Guidelines 2.1):

  • thefault be obvious in view of the disclosure;
  • the correction is obvious (in particular, it is not possible to replace the whole description, AV Guidelines 3).

TheA123 (2) EPC must be respected (T514 / 88 and H-VI Guidelines 2.2.1):

2) Basis of the analysis

You have to watch, at the filing date, which the person skilled in the art was objectively able to deduce directly and unequivocally from the documents filed, possibly based on his general knowledge (AV Guidelines 3).

If it is not possible to rely on claims provided after filing under theA58 CBE, or any other document provided after filing (except to prove the general knowledge of those skilled in the art G11 / 91), it is possible to use missing parts provided under theA56 CBE (AV Guidelines 3).

The priority document can not be of any help for this correction (G3 / 89, G11 / 91 and H-VI Guidelines 2.1).

The use of the abstract to found a correction is not possible (G3 / 89, G11 / 91).

3) Competent authority

In the case of correction of disclosure, the Examining Division is competent, even if the request is made before it has jurisdiction (J4 / 85), because a technical skill is required for such a correction.

1.3.5. Withdrawal

1) Withdrawal of a State's designation

It is possible to correct a withdrawal of a designation by mistake thanks to the R139 EPC, but it must respect certain conditions (J10 / 87):

  • at the time the cancellation of the withdrawal, this withdrawal was not made known to the public officially;
  • the withdrawal is due to an excusable oversight;
  • the cancellation does not result in a significant delay in the proceedings;
  • the EPO has ensured that third parties who have been aware of the withdrawal by consulting the file are protected (eg no request for access to the file has been made).
2) Withdrawal of the application

Concerning withdrawal of the application, its correction is no longer possible according to the R139 EPC :

  • if the public has been informed of this withdrawal in the BEB (J15 / 86) or
  • if the withdrawal has been entered in the REB (J25 / 03).

In addition, if none of the above conditions are fulfilled, then it is possible to correct by meeting certain requirements (J10 / 87, applicable by analogy):

  • at the time the cancellation of the withdrawal, this withdrawal was not made known to the public officially;
  • the withdrawal is due to an excusable oversight;
  • the cancellation does not result in a significant delay in the proceedings;
  • the EPO has ensured that third parties who have been aware of the withdrawal by consulting the file are protected (eg no request for access to the file has been made).

1.3.6. Omission of a payment or error on the amount

The R139 EPC Not Applicable :

Section 1.4. Effects

A correction under the R139 EPC retroactive effect to the original filing date (J3 / 91, J2 / 92) and restores the claim in the form that it should have had on the filing date if the error had not been made (J4 / 85).

Chapter 2. Correction of errors in decisions

Section 2.1. Deadline to submit a correction request

2.1.1. No deadline (previous case law)

For a time, the EPO considered that any decision could be corrected under the R140 EPC and whatever the date.

Indeed, if the EPO had issued a patent on the basis of a DruckExemplar with errors (eg omission of a page) the text of the patent could be replaced by the one on which the Examining Division actually intended to found her decision (T850 / 95).

2.1.2. No correction after delivery

Nevertheless, the Enlarged Board of Appeal reverted to this case law (G1 / 10) and this practice.

Indeed, the Grand Chamber considered that the R140 EPC did not allow the text of a patent to be corrected (T506 / 16) (even if an opposition is filed): the EPO is no longer competent once it has been issued.

Thus, only pre-grant decisions could be corrected to protect the rights of third parties.

Section 2.2. Type of errors

The R140 EPC provides that certain errors may be corrected in EPO decisions:

  • the errors of expression,
  • transcription and
  • obvious errors.

This correction must be requested from the body that rendered the decision.

Nevertheless, it is necessary to be cautious: it is not possible to indirectly correct errors made in the documents of the application or in the patent documents by the plaintiff or the proprietor of the patent by rectifying a decision of the Office. .

Section 2.3. Effects

Rectification then has a retroactive effect (T212 / 88).

Section 2.4. No error

If the decision is incorrect legally but does not contain an error as such, the legal solution is not the R140 EPC as presented above but the remedy.

For example, this may be the case if the Examining Division issues a patent indicating that it has taken into account the changes proposed by the applicant whereas the Drück does not contain these amendments: only a remedy will resolve this contradiction (T1869 / 12).

Chapter 3. Correction of the description following a translation

It is always possible to align the text of the application with the text as filed (A14 (2) EPC) because it is the registered text that is authentic (A70 (2) EPC).

However, in opposition, the correction must not extend the scope of protection (A101 (3) EPC together A123 (3) EPC).

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